Tort 6- Occupier and product liability

Question 1

Proving occupiers liability

Answer 1

-sufferred loss due to state of premises
-identify the occupier
-prove they are a visitor
-establish that occupier failed to take reasonable care for the visitors safety

Question 2

Occupier?

Answer 2

Wheat v E Lacon & Co Ltd (1966);
sufficient degree of control over premises
Can be more than one.
-Test of occupational control

Question 3

Visitor?

Answer 3

Express or implied permission to be on land
-If exceeds will be trespasser

Question 4

Premises?

Answer 4

Open land, fixed or moveable structures. Also vessels, vehicles or aircraft.

Question 5

Common duty of care

Answer 5

Reasonable in circumstances to ensure visitor reasonably safe.

Must meet standard of the reasonable occupier, same as other torts ‘reasonable driver, person etc.’.
* nature of the danger;
* purpose of visit;
* seriousness of injury risked;
* magnitude of risk;
* cost and practicability of steps required to avoid the danger;
* how long the danger had been on the premises;
* any warning of the danger;
* type of visitor

Child visitors higher standard.
Skilled visitors lowers standards (risks from their jobs).

Question 6

Children

Answer 6

• If allurement (temptation) must do more to protect - Glasgow Corporation v Taylor (1922).

Phipps v Rochester Corporation (1955).-
occupiers will have complied if premises reasonably safe for child accompanied. Can expect child to be accompanied.

Prudent parent

Question 7

Skilled visitors

Answer 7

Not expected to protect against special risks which are part of job.

Question 8

Escaping breach by warnings

Answer 8

Adequate warning.

Question of fact;
-Nature of warning (how specific)
-nature of danger (hidden or obvious)
-type of visitor

No need for obvious danger.

Question 9

Independent contractors

Answer 9

Three requirements occupier discharged duty;
-entrusting work to an independant contractor
-had taken such steps as reasonably ought to satisfy themselves contractor was competent
-had taken such steps as reasonably ought to satisfy themselves that work had been properly done.

Must be work of construction, maintenance or repair.
To ensure competency - references, local enquiries.

Reasonable care to check work been done properly -
if average person can check should check, if techinical (like lift)~ cannot check.

Question 10

Causation and remoteness of damage still applies

Question 11

Defences

Answer 11

Consent (voluntary assumption of risk)
ENTER AT OWN RISK
- Visitor must now risks before they enter, and show by conduct they accept.

Exclusion of liability-
Reasonable steps must have been taken
Wording of notice must cover loss suffered
REMEMBER
Unfair Contract Terms Act 1977 (other businesses)
Consumer Rights Act 2015
These apply to business occupiers or traders
-Personal injury and death.
-Other loss must be reasonable (bargaining power and practical consequences).
CRA - personal injury and death and fairness test.

Contributory negligence applies.

Question 12

Trespassers

Answer 12

1957 act above owed only to visitors.

Does not matter if unaware they are trespassing

Three other types of entrants
* people entering under an access agreement or order under the National Parks and
Access to the Countryside Act 1949;
-people who enter land pursuant to the Countryside and Rights of Way Act 2000 (the duty
owed to this category of person is limited by the 1984 Act);
* people who exercise private rights of way over land.

Public right of way (highway) not protected. Only by Highways Act 1980.

Question 13

Existence of duty

Answer 13

Not automatic, subject to certain conditions.
Occupier must;
-Be aware of danger or has reasonable grounds to believe that it exists
-Know or has reasonable grounds to believe trespasser is in vicinity of danger concerned of they may come into vicinity of danger
-Reasonably expected to offer the other some protection against risk

‘Reasonable grounds to believe’ - actual knowledge of facts which could lead reasonable occupier to be aware of danger.
-Nature and extent of risk
-Type of trespasser
-Cost and practicality of precautions.

Question 14

Scope

Answer 14

Three conditions above.
Two more limitations;
Activity doesnt count (shotgun firing) only state of premises.
Duty owed only in respect of injury.

Question 15

Breach of duty

Answer 15

Not be liable unless fallen below standard of reasonable occupier
The nature of the danger (ie hidden or obvious and the degree of danger).
* The age of the trespasser (ie adult or child).
* The nature of the premises (ie how dangerous are they? A private house? An electrified
railway line?).
* The extent of the risk (ie is there a high or low risk of injury?).
* The cost and practicability of precautions (ie how easy would it be to remove or reduce
the risk and what would such measures cost?).
* The nature and character of the entry (eg burglar, child trespasser or adult inadvertently
trespassing).
* The gravity and likelihood of injury.
* The foreseeability of the trespasser (ie the more likely people are to trespass, the more
precautions must be taken).

Warnings - not adequate for children. Obstructions may be necessary

Phipps applicable here as well (parental responsibility)

Question 16

Causation and remoteness

Answer 16

Novus interveniens considered and causation and remoteness

Question 17

Defences

Answer 17

-Consent; voluntary assumption of risk

-Exclusion of liability; silent as to exclusion. UCTA or CRA do not aply

-Contributory negligence

-Illegality - Applies when entering land to commit crime.

Question 18

Product liability

Answer 18

-
(Remember contract still a remedy)
Show duty of care which has been breached causing damage to C which is not too remote.

Question 19

Duty of care

Answer 19

(Remember neighbour principle from Donoghue v Stevenson 1932)

• D is a manafacturer
  -Item causing damage is a product
  -Claimant is a consumer
  -Product reached consumer in form in which it left manufacturer with no reasonable possibility of intermediate examination

Question 20

Manufacturer?

Answer 20

Widely interpreted.
Works on some way on product before it reaches consumer.
-repairers
-installers
-sometimes suppliers

Suppliers (Andrews v Hopkinson 1957)-
ought to reasonably inspect or test products which they supply. Or they actually know of defect/danger.

Question 21

Product?

Answer 21

Any item.
Packaging and things that come with product as well

Question 22

Consumer?

Answer 22

Not only ultimate user but anyone who defendant should reasonably have in mind as likely to be injured.

Reasonable possibility of intermediate examination no duty of care. Duty may be owed by party having opportunity to inspect product instead.
Must believe likelihood of inspection taking place.

Question 23

Scope of duty

Answer 23

Any injury to persons or damage to property done by the defect in the product. If damage just the defective product (pure economic loss) not covered.

Question 24

Breach of duty

Answer 24

Exercise reasonable care

Question 25

Proof of breach

Answer 25

Lies with C (usual rule).
Res ipsa loquitur (accident is enough to prove negligence) does not apply here.

May infer however, C still have to prove some facts.
Once inference arises, court will infer breach of duty unless D can rebut that some later problem caused it not their lack of care.

Question 26

Causation and remoteness

Answer 26

Usual ‘but for’ test
Remoteness - reasonably foreseeable

Question 27

Defences

Answer 27

Consent; Voluntary assumption
C aware of risk. Conduct must also show willing acceptance of risk.

Exclusion of liability-
Death or personal injury cannot be excluded (UCTA 1977)
CRA - business or trade.
Can be excluded if reasonableness test (UCTA) or fairness test (CRA 2015).

Contributory negligence;
Under the threshold of consent.

Question 28

Consumer Protection Act 1987

Answer 28

Claim can bring additional cause of action (cannot recover damages twice).

Question 29

Who can sue?

Answer 29

Establish
-sufferred damage
-caused by
-defect
-in a product

Unlike above need not be foreseeable victim.

Question 30

Damage

Answer 30

-death and personal injury without limit - disease and impairment of a persons physical or mental condition.
-damage to private property must exceed £275 before a claim can be brought. Full amount recoverable after threshold
-Business property is outside scope (not used mainly for private use)
-Cost of repairing or replacing is not recoverable (pure economic loss)

Question 31

Causation

Answer 31

Usual ‘but for’ test.
-Under CPA 1987 must show defect caused damage. in negligence must show breach of duty caused damage.

Remoteness not addressed.
Strict liability tort
Direct consquences test from Re Polemis (all consequences flowing from negligence however unremote)

Question 32

Defect

Answer 32

Caused wholly or partly by defect.
‘Unsafe’
Level of safety persons should expect
-whole get-up and presentation of the product
-expected use of product
-age of product in question

Not satisfied by reasonable care (A v National Blood Authority 2001).

Question 33

Product

Answer 33

Must exist in a product.
Widely defined.
Electricity, good, component parts like engine or car.

Question 34

Who is liable?

Answer 34

-Producer of product (both overall manufcaturer and component manufacturer).
-Own brander (trade mark)
-Importer
-Supplier but only in circumstances in CPA 1987

Forgetful suppliers - liable only where unable to meet a victims request identify any of the people involved in chain of supply.

Question 35

Nature of liability

Answer 35

-Merely show defect caused damage.
Strict liability (D liable without any fault).

Question 36

Defences

Answer 36

Switches to D to establish defence;

-Defect was attributable to compliance with legal requirements

-Defnedant did not supply the product to another
Or outside course of business

-Defect did not exist when supplied

-Manufacturer of component parts not liable for defect in finished product which is wholly attributable to design of finished product or compliance with instructions given by manufacturer

-Development risks -(drugs, medicine) - state of knowledge at time product supplied was not such as to allow producer to discover defect.
Judged against highest standard of knowledge accessible anywhere. Only risk/defects that could not have been foreseen.

-Contributory negligence

-Cannot exclude liability