Tort Flashcards
What is the sequence to determine whether a duty of care is owed?
What are the common duty of care precedents outlined in the materials?
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
When is there duty of care for omissions?
statutory (occupiers liabilty)
contractual
sufficient control over claimant (parents, prisoners)
assumes responsibility (employment, teacher/pupil)
defendant creates the risk
Summarise the duty of care owed by emergency services
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)
What is the general rule in tort for failing to prevent a third party from causing harm to another?
No duty of care
In what 4 circumstances is there likely to be a duty of care for failing to prevent a third party from coming to harm?
Proximity between D/C
Proximity between D/third party
Defendant created danger
Risk was on D’s premises
Summarise the major caselaw principles for duty of care to third parties for sufficient proximity between D/C?
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
Summarise the major case law principles for when there will be sufficient proximity between d/3rd party?
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
What is the key caselaw principle when establishing duty of care to 3rd parties when it is on D’s premises
They have to have known about the danger on their premises
What are the 3 key distinguishing factors when considering whether public bodies have a duty of care?
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
What 3 case examples were given for DOC for public bodies?
No duty to take children into state care
Policy considerations – floodgates
Operational errors (liable) vs policy errors (not liable)
What is the starting point for public body liability?
Same as for individuals
What are the 2 stages to determining breach of duty?
Standard of care
Did they fall below
What is the general rule for standard of care?
Reasonable person test (objective)
What is the standard set by?
Act not actor
What is the professional standard?
Reasonable professional in that field
Is there a lower standard for junior professionals?
No
What is the standard for children?
Reasonable standard for a child of their age
What adjustments to the standard can be made for disability
Circumstances which the defendant was reasonably unaware of
What is the Bolam test?
[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.
What facts and circumstances are considered to determine whether standard of care was breached?
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
To what degree must the breach be proven?
Balance of probabilities
Who has the burden to prove breach of DOC??
Claimant
What does the maxim res ipsa loquitur mean?
Facts speak for themselves
The ONLY plausible explanation for the claimants injuries is negligence
Who has the burden of proof to rebut a res ipsa loquitur case?
Defendant
What 3 conditions must apply for res opsa loquitur to be engaged?
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
Is ascertaining the standard of care a question of fact or law
Law
Is ascertaining whether the standard has been breached a question of fact or law?
Fact
What factors matter when determining whether someone/something is a responsible body of professionals
Not numbers of people in the body
But the merits of those people making up that body
When can a professional common practice still be deemed a breach by the courts
If it is illogical
Experts haven’t turned their minds to the comparative risks and benefits to reach a defensible conclusion
What is the current view on whether patients can expect state of the art treatment?
If it is very mainstream
Not if it is in some tiny obscure journal or is otherwise inaccessible
Does Bolam apply when looking at failure to warn of risks?
No
What risks do doctors have to warn of?
Material ones
What is the test for a material risk?
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.
When can a doctor withhold information about a risk?
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.
That the Bolam test isn’t applicable for risk warnings has recently evolved… how?
A doctor now has the obligation to take reasonable care to advise the patient of any reasonable alternative or variant treatments.
What 2 types of causation are there?
Factual: Is there a link between breach and damage?
Legal: should the link be regarded as broken?
What is the starting point for factual causation?
But for
To what degree must the but for test be satisfied?
50%
Balance of probabilities
In clinical negligence cases, what is the other way that the but for test can be satisfied
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
When will the courts depart from the but for test and what will they apply instead
If multiple causes operated together
Material contribution test
In what types of cases is the material contribution test often applied?
Industrial disease single agency
When has the ‘loss of chance’ argument been allowed to be applied?
In cases involving pure economic loss
When will there be sufficient causation for a disease caused by cumulation (e.g., non-tortious exposure and also tortious exposure)
Material contribution
More than negligible contribution to the loss
What is the material increase in risk test for?
Tortious and non-tortious exposure where you can’t be certain which exposure, if either, caused the breach (unlike cumulative where they both apply)
What is the material increase in risk test?
The breach materially increased the risk of injury
Where does the material increase in risk test apply e.g., what fields?
Basically only ever industrial disease with one causal agent
Basically always asbestos
What approach is taken by courts when multiple tortious factors have caused a loss?
Apportion liability between defendants
Can liability be apportioned for mesothelioma cases?
No, all defendants are jointly and severally liable
How is liability apportioned across two tortious events?
First D liable for initial injuries past point of second even
2nd D liable for additional losses
How is liability proportioned for a tort followed by a natural event?
Defendant liable for damage up to the natural event
How is liability proportioned for 2 defendants in a multiple sufficient causes case?
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
What are the 3 novus actus interveniens?
Acts of god
Highly unforeseeable acts of third parties
Acts of a claimant that are highly unreasonable
What is the test for remoteness?
Type of damage suffered must have been reasonably foreseeable
What happens if the specific damage suffered was not reasonably foreseeable?
Claimant will still succeed if the same type of damage was foreseeable
If the same type of damage was reasonably foreseeable then what 3 key points follow?
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
Which case established reasonably foreseeability of damage?
Wagon mound 1
What approach will the court take when determining reasonable foreseeability in terms of narrow vs broad?
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
What criteria need to be established to show the defence of consent?
Had capacity
Full knowledge of nature and extent (subjective)
Agreed to risk of injury (subjective)
Agreed voluntarily
What types of case can you never show defence of consent?
Motorists facing claims from passengers
What is needed to show consent for medical negligence?
Has to be an agreement to waive a claim for negligence
If a term limits/excludes liability for losses, does that mean the party has consented to those risks/losses?
No
To what degree must consent be proven?
Balance of probabilities
Will consent hold for suicide in police custody?
No, they have a duty of care to prevent it
Reduction for contributory negligence will apply
Will drunkenness negate capacity to consent?
Probably not unless they were like unconscious
Does knowing about a risk in advance imply consent?
No, unless it is something egregious like meddling with an unexploded bomb
Engaging in an intrinsically and obviously dangerous activity
How is consent impacted if it is an employee?
Because they have less power/fear of losing their job
Hard to imply they consented to a dangerous activity
What acts does statute prevent the defence of consent from working on?
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
What does the defendant need to show to establish contributory negligence?
Claimant failed to take reasonable steps for their own safety
Failure contributed to the claimants damage
When will the claimant be less likely to be at fault for failing to take reasonable steps?
Acted in an emergency
Are a child
Are a rescuer
What must the claimants failure contribute to, to establish contributory neglience?
The damage not the accident
What is the standard test to show whether a claimant failed to take reasonable steps for their own safety (contributory negligence)
Same degree of care as a reasonable and prudent person
What is the process for establishing defence of illegality?
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?
- Other relevant public policy where denial would have an impact?
- Is denying the claim proportionate to the illegality?
What factors are potentially relevant when examining whether denying the claim is proportionate to the illegality under Patel v Mirza?
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
What is the latin term for illegality defence?
Ex turpi causa non oritur actio
What is the latin term for consent defence?
Volenti non fit injuria
What do special damages cover?
Provable and quantifiable financial losses at the time of trial
What do general damages cover?
Future financial losses which cannot be specifically proven and non-quantifiable losses
What is the basic approach to calculating future losses?
Multiplier/multiplicand
Take expense and multiply by number of years it will continue to be suffered
What does the court take into account when calculating future losses?
Amount that could be accrued by investments so that the claimant is not over compensated
What things are deducted from damages?
State benefits
Contractual sick pay
Redundancy payment
Contributory negligence
What things are not deducted from damages?
Insurance pay-outs
Ill-health pensions
Sums from gifts or charity
What can a persons estate claim when they’ve died for negligence?
Only everything lost from the accident up to date of death
What can dependents claim under fatal accidents?
Any losses, including income
Who is a dependent for the purposes of fatal accidents?
Close blood relations, cohabiters for over 2 years
What duty does an employer owe?
Personal and non-delegable duty to take reasonable precaution to ensure an employees safety
What things do employers need to provide employees?
Safe/competent employees
Safe/proper plant and equipment
Safe premises
Safe system of work
What is the difference between employers primary liability and vicarious liability
Vicarious: sue employer for employees negligence
Employer: employee sues their employer
What is the overarching single duty that employers owe to employees?
Reasonable precaution to ensure employee safety while at work
All the particulars are just examples of that, not separate duties
Does an employer have to take individual characteristics/vulnerabilities of specific employees into account?
Yes
What must be established to show vicarious liability?
A committed a tort
A is D’s employee, or in a relationship akin to employment
Tort was committed in course of employment
What test is it to show that the tort was committed in the course of employment?
Sufficiently close connection
- What functions/field of activities did the employer trust to the employee
- 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
Why is vicarious liability strict liability?
Cause they are liable even if they weren’t at fault
What common factors from prominent case law will help establish that the tort happened during employment?
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
What factors from caselaw make it less likely that the tort happened during employment?
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
Can an employer recover any of their losses when they lose a vicarious liability claim?
Possibly indemnity from the employee
What test is applied to decide whether there is an employer/employee relationship?
Multiple factors test aka economic reality test
What presumption arises when an employee is lended to another employer?
Rebuttable presumption that the employer who loaned the employee will be vicariously liable for their loaned employees torts
When is a worker definitely not an employee?
If they are carrying out their own independent business
What are the 3 parts to the multiple factors test??
Renumeration in exchange for personal service and mutual obligations
Control
All other contractual factors consistent with employment relationship
Will someone be an employee if they can choose to send somebody else in their place?
No, because employee duties are personal
Are 0-hour contract workers likely to be employees?
No, there is no mutual obligation to work or provide work
What are the ‘other factors’ which determine if somebody is an employee?
Tools/equipment provided by employer
Tax/PAYE
Employee integrated into organisation
Labelled as such
Benefits
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?
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
What is an actual victim?
Person suffering from psychiatric and physical harm
What is a primary victim?
Within danger zone, suffers a harm for reasonable fear for their own safety
What is a secondary victim?
Suffers a harm due to fear for someone else’s safety witnessing the event or immediate aftermath
What 2 types of psychiatric harm are recognised?
Diagnosed psychiatric condition
Shock-induced physical condition
Are bystanders and rescuers given special status under the psychiatric injury law?
No
Is reasonable fear objective or subjective?
Objective
What is the test to determine whether primary victims were owed a duty of care?
Whether physical injury was reasonably foreseeable
What happens if physical injury wasn’t foreseeable for an actual victim?
Consider precedents
Run Caparo
What is the likely outcome of running Caparo if physical harm was not foreseeable for an actual victim?
- Proximity is usually established because of geographic proximity (the actual victim was at the site)
- If defendant negligently/foreseeably put claimant in fear for safety, courts will likely find it fair/just and reasonable to impose DOC
What is the test in Page v Smith
If physical harm is foreseeable, psychiatric harm does not have to be as well in order for there to be a DOC
What type of victim does the Alcock criteria apply to?
Secondary
What are the Alcock criteria?
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?
How does the thinskull rule operate for secondary victims?
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
What is the test for proximity of relationship between claimant and victim?
Close ties of love and affection
In what relationship is there a rebuttable presumption of close ties?
Husband/wife
Parent/child
Engaged couples
What test satisfies the Alcock criteria for proximity in time and space to the accident?
Present or at its immediate aftermath
Seen or heard accident or aftermath with OWN SENSES
Can you be a secondary victim for witnessing a negligent medical practice/crisis?
No
Can you be a secondary victim for a big accident that happens in a medical setting?
Yes
What other cases are there outside of the primary/secondary victim classification for psychiatric harm?
Assumption of responsibility
When will a D owe a C a DOC not to cause psychiatric harm under assumption of responsibility?
If the D assumed a responsibility for the C to not have psychiatric harm
employer/employee
doc/pt
police/police informant
What is the common context when assumption of responsibility applies for psychiatric harm?
Occupational stress claims
What are the guidelines for occupational stress claims?
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
Is pure economic loss recoverable in general negligence?
Yes
What does pure economic loss include?
Economic loss not flowing from the damage
Economic loss flowing from damage to property of another
Costs of repairing/replacing defective items
What is the general rule around recovering for pure economic loss?
No duty of care owed for PEL
When does pure economic loss arise?
When there is no damage to property or injury to person
What are the 3 common examples of PEL not flowing from damage to person or property?
Bad investment
Missed contractual opportunity
Lost an inheritance
Why is PEL not usually available for defective items?
Cause theres usually a claim in contract
What are the 3 exceptions to the rule that PEL is not recoverable?
PEL caused by negligent misstatements
Wills
References
What is the common theme where PEL is recoverable for wills?
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
What is the duty owed regarding references that can make PEL recoverable?
Duty to make an accurate reference
You’ve assumed responsibility by agreeing to do it
What criteria need to be applied to claim PEL for a negligent misstatement?
Hedley Byrne v Heller
- Reasonable reliance
- Assumption of responsibility
- Special relationship of trust and confidence
How many of the criteria in Hedley Byrne v Heller need to be satisfied to claim PEL for a negligent misstatement?
Only 1
What 3 tests are used in to determine whether there was reasonable reliance under a negligent misstatement under Hedley?
(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.
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?
(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
When could a friend end up having a DOC for PEL when providing advice in a social situation?
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
Is there a duty of reasonable care and skill for friends providing free services when they’re a professional?
Yes
What is the test for whether there is voluntary assumption of responsibility in Hedley Byrne?
But for the absence of consideration, there would be a contract
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)
(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.
When is there a special relationship of trust and confidence under Hedley?
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.
Do disclaimers apply to PEL cases?
Yes
Unless protected under UCTA or Consumer Rights Act 2015
What factors will be taken into account in a PEL case when deciding whether a disclaimer was unreasonable?
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?
Define private nuisance
Continuous activity or state of affairs causing substantial and unreasonable interference with a claimants land or enjoyment of it
Who can bring a private nuisance claim?
Someone with legal interest in affected land
Who can the claimant sue in a private nuisance claim?
Creator of nuisance
Occupier of land from where nuisance emanates
Owner of land from where nuisance emanates
What third-parties can an occupier be liable for nuisances of?
Independent contractors
Predecessors in title
Trespassers
Visitors
Naturally occurring nuisances
When will an occupier be liable for trespassers/visitors/predecessors in title nuisance?
If they continued or adopted the nuisance
When is an occupier liable for naturally occurring nuisances?
If they knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance
Are landlords usually liable for private nuisance?
No, not unless the exception in Coventry applies
What is the exception in Coventry denoting when landlords are liable for private nuisance?
If they actively/directly participate
Lease the property in circumstances where there was a high degree of probability of that specific nuisance
What are the 4 elements which make up a private nuisance claim?
Indirect interference
Recognised damage
Continuous act
Unlawful interference
What are recognised losses in private nuisance?
Physical damage to property
SPD (sensible personal discomfort)
What constitutes an unlawful interference?
Unreasonable interference
What is the courts approach to determining whether defendants use of land was reasonable or not?
Balance various factors
What is an indirect interference?
Sounds
Smells
Fumes
Vibrations
What is a direct interference?
Trespass
Can indirect interference be caused by failure to act?
Yes, if it causes a loss
Can a claimant claim for pI in private nuisance?
No, it is a tort against land not person
How damaged must property be for a private nuisance claim to succeed?
More than de minimus
How bad does SPD need to be to count as a recognised loss in private nuisance?
More than fanciful and must materially interfere with ordinary human comfort
What claims should be made instead of private nuisance when the act is not continuous?
Negligence
Rylands
Public nuisance
What are the exceptions to the continuous act rule to form a claim in private nuisance?
- Single incident caused by an underlying state of affairs
- Activity which creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material
What 5 factors will the court look at when deciding whether an interference was unreasonable?
Time and duration
Locality and character of neighbourhood
Abnormal sensitivity
Malice
Defendant has shown lack of care
Excessive behaviour
When can locality and character of neighbourhood be taken into account?
Only if the loss is SPD
How does planning permission effect locality and character of the area?
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
How is abnormal sensitivity treated when deciding whether a nuisance is unlawful (unreasonable)
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
How is malice treated when assessing whether private nuisance is unlawful/unreasonable?
No real justification for actions other than to annoy the claimant it will be nuisance
How it lack of care treated for the purposes of private nuisance?
More likely to be a nuisance if the D didn’t take reasonable steps to minimise their annoyance
How is excessive behaviour treated as a factor to establish private nuisance?
If it is truly absurd, e.g., hundreds of pet pheasants
Is locality relevant to physical damage to property claims?
No
What are the defences to private nuisance?
20 years prescription
Statutory authority
Consent
Contributory negligence
Act of 3rd party
Act of God
What remedies are available for private nuisance?
Injunctions, damages, abatement
What is the primary remedy for private nuisance?
Injunction
When will damages be awarded for private nuisance?
Physical damage to property
If it is against public interest to grant an injunction, and the loss is SPD, what will be awarded instead?
Damages
When does the 20 year period start running to establish the defence of prescription against an actionable nuisance?
The date at which it became an actionable nuisance… e.g., when somebody moved in next door
Does the nuisance have to be continuous over 20 years for the defence of prescription to apply?
No, just a sum total of 20 years
When will the statutory authority defence against private nuisance operate?
If the nuisance is being exercised on statutory authority AND
all due care is being taken
AND
Nuisance is inevitable
Can the defence of consent to nuisance be implied?
Yes, e.g., consent to colliery will be implied consent to coal dust
How does the 3rd party defence against private nuisance operate?
You won’t be responsible for nuisance of a 3rd party unless you adopt or continue the nuisance
Is it a valid defence to private nuisance to assert that the defendant moved to the nuisance?
No
What is the remedy of abatement?
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
How is public nuisance defined?
Acts or omissions of the defendant that materially affect the reasonable comfort and convenience of a class of majesty’s subjects
Who can sue in public nuisance?
Individual, Attorney General, local authority
Who can be sued in public nuisance?
Owner, occupier, creator
What are the elements to consider for public nuisance?
Act/omission, one-off or continuous, class of people, loss must materially affect the comfort and convenience of the class
What are the defences to public nuisance?
Same as private but no prescription
What are the remedies for public nuisance?
Same as private, but injunctions can only be granted when the claimant is the AG or local authority
What does an individual need to show about themselves to be able to make a claim in public nuisance?
They suffered special damage over and above the rest of the class
Damage must be substantial
What damage is recoverable in public nuisance?
Property damage
CEL
Personal injury
Pure economic loss
Material inconvenience
In order to be a class for the purposes of public nuisance, they need to have suffered a common injury: define common injury
Same time, same location
Sending things in letters to different people which arrives at different times and locations won’t be a public nuisance
What does Rylands v Fletcher protect against?
Isolated escape from the D’s land
Who can claim under Rylands?
Someone with a proprietary interest in the land affected
Who can be sued in Ryland v Fletcher?
The person who brought the thing onto the land
Person who has control over the land
What losses are recoverable under Rylands?
Property damage and CEL
What are the elements to a Rylands claim?
Brought onto land
Anything likely to do mischief if it escapes
It does escape
Escape caused foreseeable harm
Non-natural use of the land
What are the defences in Rylands?
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
What are the remedies under Rylands?
Same as private nuisance:
Injunctions, damages, abatement
If something is growing on the land, will it be brought onto the land to satisfy Ryland?
No
How high is the threshold for ‘anything likely to do mischief’ to satisfy Rylands?
Exceptionally high risk of causing a danger if it were to escape
Not a pipe carrying water to flats
Will a fire count as a thing brought onto land for Rylands?
No, not unless it was set on purpose
Will fuel brought onto the land, which then catches on fire and spreads be deemed an escape?
Yea, the fuel is escaping with the fire
Does the D need to have foreseen the escape to satisfy Rylands?
No, they only need to know that it ought reasonably to cause harm if it did escape
Will the D under Rylands still be liable if they take reasonable steps to prevent the escape?
Yes, Rylands is an example of strict liability
What is meant in Rylands by non-natural use of the land?
Non-ordinary
What factor is commonly used in determining non-natural use of the land?
Quantity
E.G., even if industrial, is it particularly huge?
When can common benefit be established as a defence in Rylands?
Claimant agreed to the material accumulation
Consent implied if substance was accumulated for the mutual benefit of C and D
How does the Act of Claimant defence operate?
If the escape was caused by the claimant
How does the act of a third party defence operate for Rylands?
Unforeseeable act of a stranger over whom they had no control
What does OLA 1957 govern?
Occupiers to visitors
What does OLA 1985 govern?
Occupiers to non-visitors
What losses are recoverable under OLA 1957?
PI
Property damage
Are visitors owed a DOC? How?
Yes, by statute under OLA 1957
What is the definition of an occupier?
Sufficient degree of control over premises
*can be multiple
What is the definition of premises?
Any fixed or moveable structure
When would a loss on a property be more suitable for a general negligence claim than an OLA 57 claim?
If it relates to an activity on the premises as opposed to the state of the premises
What exact DOC is owed by occupiers to visitors?
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
What 4 categories of occupier were given in Wheat?
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
Can premises be a ladder?
Yes
Who is a visitor under OLA 1957?
Express or implied permission
Lawful and contractual permission
In what ways can express permission as a visitor be limited by notice?
Area
Time
Purpose
What are examples of people with lawful authority to enter premises?
Gas officials
Police with warrant
What law are those using a public right of way (footpath) covered under?
Only common law
What law are those using a private right of way covered under?
OLA 1984
What laws are those exercising their rights to roam covered under?
Owed a DOC under OLA 1984
Countryside and Rights of Way Act
To whom is a higher standard of care required under OLA 1957?
Children and visitors with particular vulnerabilities
When is a lower standard of care owed to visitors under OLA 57??
Persons exercising a right of calling
How is breach of DOC analysed for OLA 57?
Same factors as negligence sequence
When will an occupier not be in breach under OLA 57
If they warned the C of the danger and the warning was enough for the visitor to be reasonably safe
When will an occupier not breach OLA 57 regarding building works?
Where they acted reasonably entrusting the work to the independent contractor
What are the defences to OLA 57 breaches?
Volenti
Contributory negligence
Illegality
Articulate the standard of care owed to visitors under OLA 57
A reasonable occupier
What special considerations are given to children under OLA 57?
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
What special factors will be considered when looking at whether the standard owed was breached?
Cost of preventative measures
Resources available
What must a warning contain to discharge liability under OLA 57?
What danger is
Where
How to avoid
When can duty be discharged under OLA 57 for an independent contractor?
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)
How is causation and remoteness treated under OLA 57?
Once duty and breach are established, there is an assumption that causation and remoteness are also satisfied unless there is a glaring issue
What losses are recoverable under OLA 1984?
PI only
What is the standard of care expected of occupiers under 84?
Reasonable care to see that the entrant does not suffer injury by reason of danger concerned
What factors are analysed when examining breach of duty?
Negligence factors
Age
Nature of danger
Nature of premises
Purpose of claimant
Foreseeability of trespassing
Whether sufficient warning of the danger was given
What are the defences to claims under 84?
Consent
Contributory negligence
Illegality
What is the definition of trespasser?
He who goes onto the land without invitation and whose presence is either unknown or if known is practically objected to
What are the criteria under OLA 84 to establish whether a DOC is owed?
- Aware of danger and have reasonable grounds to believe that it exists
- 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
- Risk is one against which, in all circumstances, they may reasonably be expected to offer the other some protection
What factors are analysed to determine whether it was reasonable to protect a trespasser against the risk?
Foreseeability
Seriousness
Costs
ETC
Will a duty be owed to claimants choosing to engage in activities with inherent risks under OLA 84?
No
Under OLA 84, what factors are considered to ascertain whether the standard of reasonable occupier was breached?
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
What warning notices will be sufficient under OLA 84?
Any notice to bring danger to attention, or discourage trespassing
Includes physical barriers like fences
How are causation and remoteness treated under 84?
They are presumed satisfied
Would a defence of illegality succeed under 84?
Probably not, because 84 is specifically designed to afford protections to people doing something illegal (trespassing)
What liability can business occupiers exclude themselves from?
Everything except for
Non-consumer visitors death or personal injury
What can traders exclude liability for under CRA 2015 (occupiers liability(
Can exclude liability for consumer losses if term and notice is fair
Cannot exclude consumer visitors death or PI
What 4 restrictions apply to occupiers under 57 regarding their ability to restrict/exclude liability?
s3 OLA 57
Unfair contract terms 1977
Consumer rights 2015
Common law
What does s3 OLA 57 say about ability to exclude/restrict DOC?
If an occupier is bound by contract to allow onto premises, you cannot exclude/restrict your DOC
It protects employees
How does the CRA regulate excluding OLA 57?
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
How does the UCTA 1977 treat attempts to exclude/limit occupiers liability 57?
B2B (e.g., person entering property to exercise business)
Cannot restrict death or PI from negligence
Can exclude other losses from negligence if reasonable
When is a term attempting to exclude OLA 57 liability under CRA 2015 unfair?
If contrary to good faith, causes a significant imbalance in the parties rights and obligations to the detriment of the consumer
How does common law protect against trying to exclude OLA 1957?
Restrictions are judged against the principle of common humanity
How much exclusion/limitation of liability is allowed for OLA 84?
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
Who can claim under the consumer protection act 1987?
Anyone suffering damage from a defective product whether or not they purchased/used it
What must the claimant show to claim under the Consumer Protection Act 1987?
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
What avenues to a claim should a practitioner consider when presented with a defective product issue?
Negligence
Breach of contract
Consumer protection act
What loss is claimable under the consumer protection act 1987?
Any damage caused wholly or partly by a defect in a product
How is product defined under CPA1987?
Anything
Component parts
Electricity
Raw material
How is a defect in a product defined?
Safety is not such as persons are generally entitled to expect
What are people entitled to expect regarding products? What is considered to establish reasonable expectation?
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)
What types of damage can be claimed for defective products?
Death
PI
Loss or damages to property
What are the limits on damage claims that can be brought for defective products?
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
Can you recover the cost of the lost defective product under CPA 1987?
No
Who is liable for damage under CPA 1987?
Producer
Holding self out to be the producer
Person who imported the product
How is a producer defined for CPA 1987?
Manufacturer
Person who won/abstracted the product
Person who carried out the process of giving the product essential characteristics
Can business buying things claim under CPA?
No
What are the 2 defences to CPA 87 claims?
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
Can exemption clauses for CPA 87 be upheld?
No
What is the deadline to bring a CPA claim?
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
What additional protections are offered under CPA, that aren’t offered in contract and negligence claims?
- Protection not limited to purchasers or product users
- No need for foreseeability of harm
- Slightly more relaxed causation criteria
Do those repairing products owe DOC in negligence claims?
Yes
What common precedent is used to establish DOC in negligence for bad products?
Donoghue and Stevenson
Snail in drink – DOC was owed to the friend who herself did not purchase the beer
Is the loss of the product recoverable in negligence claims?
No that is PEL
Is it more difficult to prove a breach for defect or design of the product?
Defect
Do producers need to examine all their products?
No, they just need to examine a reasonable number
