TORT Flashcards
Guy dives into shallow end of pond known for similar instances on council land becomes tetraplegic. Council liable?
Tomlinson v Congleton BC 2004
No => O Liab (-)
Hoffmann says
“majority of people at lakeside where behaving quite properly, which posed no risk to themselves or others…”
&&
here dangers perfectly obvious
Backed by Ratcliff v McConnell
student going back to partially drained pool diving head first => student had voluntarily assumed risk => O Liab (-)
Trespasser unusual use of a fire escape. Liability for injury?
O.L.A 1984 s.1(1)(a) only considers state of premises =>
if state not dangerous but used in a dangerous manner =>
Occupier Liability is (-)
Keown v Coventry Healthcare
11 year using fire escape as climbing frame. => Hospital boy aware of danger => risk not from state of fire ecape but on the means with which it was used => Occupier Liability (-)
Also Thomlinson
Lake not dangerous per se but diving into it when one couildnt swim for example would be.
Child trespasser seriously injured fell thru skylight in unoccupied territory.
Should Occupier have known that it would have be bound to attract trespassers?
Swain v Natui Ram Puri
Arg: O did know about trespassers in vicinity should have known unoccpied factory would have attracted Trespassers.
HELD
Needs to have actual knowledge of relevant facts (ie that children would climb the roof) OR had known facts which gave reasonable gronds for belief (gaps in Fence BRB v Herrington 1972)
In this case neither => No Liable(-)
Supported by
Higgs v WH Foster
Policemen fell into an uncovered coach pit
No obvious short cut => no reasonable grounds to suggest D would come into vicinity of put at night +> Liable (-)
5yo child broke arm when fell from swing near playing field for school sports day.
Council liable for not putting sings out of action?
No
Simonds v IOW Council
Grounds
Social cost too high, ie if such a burden placed such sporting events may not be held in future, invoked Tomlinson v Congleton BC (councl lake. Hoffmann majority of people behgaving properly and unjust that #harmless recreation of responsible parents with buckets and spades should be prohiited in order to comply to legal duty v irresponsible visitors#)
Purpose of Compensation Act 2006, s.1
when considering whether a D is in breach of a duty of care => should consider whether imposing liability might deter potential defendants from carrying out desirable activities?
See also Hoffman in Simonds v IOW Council
For trespassers, is there a requirement that warning must enable entrant to be reasonably safe?
NO
=> can provide simple warning notice of danger, ex on bridge DANGER DO NOT USE!
Whom does the 1984 CRA apply to?
People on premises w/o Occupiers permission.
(not necessarily but usually trespassers)
BUT
Trespasser usually assumes person intended to be on the land.
=> person came into land by accident => T ?
=> Person who breaks implied condition after entering land as visitor => 1984 Act
What is the duty of common humanity?
minimum standard of care owed to all
BRB v Herrington 1972
child electrocuted on railway line ==> knew about gap in fence => futy to rerain from causing deliberate harm but lower than duty in 1957 Act (visitors== obviously?) BRB held liable (+)
BUT Law commission later could not extract any clear PRINCIPLE +> LED TO ola 1984
Limited Applicability|?
Notices which attempt to exclude liability for damage to property and consumers?
Fairness test not reasonableness test (UCTA 1977 s.2(2))
CRA 2015 s.62(6)
Fairness Test
“…is unfair, if contrary to requirement of good faith, it causes significant imbalance in the parties rights and obligations to the detriment of the consumer”
Personal injury or death exclusion clauses are not allowed in the CRA 2015. Section?
s.65 CRA 2015
Cf
UCTA s.2(1)
dangerous or defective state versus activity and ability to exclude liability
state (+) => occupant has duty
activity (-)
where persons enter a farmers land for a non-business purpose (ex visiting a monument= recreational purposes)
Variant
entrant hit by a tractor => OL(+)
Notices or contract terms which attempt to exclude liability for damage to property or other matters (Not personal injury, not death) valid?
UCTA 1977, s.2
ONLY IF reasonable
Licencee on land injured when taking short cut across land.
D had posted notices on land with a classic exclusion clause.
D liable?
Ashdown v Samuel Williams 1957
(-) Englishmans home is his castle => free to dictate on terms of exclusion
BUT Today
exclusion would fall foul of UCTA 1977 s.2(1)
=> on grounds of no exclusion from personal injury
Can an O exclude their liability?
(+) s.2(1) OLA 1957
BUT
UCTA 1977 | CRA 2015
Lift in a block of flats fell to bottom of shaft due to negligence of independent contractor killing plaintiff=> Work not inspected by O. O liable?
work of technical nature => O could not be expected to ensure work had been properly done.
Why not?
If liable would effectively make O insurer of contractor’s negligence =>
inconsistent with principle: tort operates most efficiently when places liability on party who is able to avoid the risk at least cost
BUT
may have breached common duty of care “to do what is reasonable in all the circumstances of the case”
Variant
Contractor left door to open shaft of lift open.
=> obvious danger => Occupier Liab(+)
Situation with visitors and contractors
GR under vicarious liabilty
=> Employer not normally liable as occupier
Pre 1957 Act LIAB(-)
1957 OLA s.2(4)(b)
Liable (-) IF
- reasonable to entrust work to an independent contractor
(usu +) where normal to subcontract such work
&&
2 O had taken reasonable steps to satisfy themselves that contractor was competent
(usu+) unless aware of some facts from past where not competent
BUT in some circumstances may need to check member of relevant trade association, has qualifications, esp if hazardous (Bottomley v Todmorden Cricket Club) BUT unreasonable for hospital to check that a contractors insurance certificate had not expired (Gwilliam v West Hertfordshire NHS)
If not specialist (like cleaning the floor in Woodward v Mayor of Hastings) && child victim=-> School liable(+)
&&
3 Occupier took reasonable steps that work had been properly done
more complex work => less reasonable to expect O to inspect it personally
Occupier gave warning did not enable V to be safe BUT Presence of guard rail may absolve O of Liability?
s.2(4)(a) “the warning not to be treated without more..”
&& need to “consider all circumstances of case”
=> may ==> OL(-)
What about OL and obvious risks?
GR to adult visitors
Liability(-)
EX
Drowning in murky pond Darby v National Trust
&&
Badly stacked classroom chairs caused injury
Blackpool & Fylde v Burke
Variant 1
Child/mentally disabled
=> duty (+)
Hoffman in Tomlinson v Congleton BC
Children ⊂[lack of capacity| no genuine or informed choice]
==> duty to protect against obvious risks
Children and warnings
Children do not always heed warnings &&
Warnings must be comprehensible to persons directed at ==> Occupier may be required to take other steps, ex
barriers
to meet Common Duty of Care s.2(2) OLA 1957
What kind of warnings may absolve Occupier of liability
s.2(4)(a)
“unless in all the circumstances it was enough to enable the visitor to be reasonably safe”
=> 2 bridges 1 safe.
Variant 1 Occupier DO not use Bridge Dangerous => Liable as does not enable
Variant 2 Occupier Do not use Bridge Use Bridge 2 instead => OL-
Occupier negligently created a fire on premises fireman can claim for injury?
(+)
Ogwo v Taylor 1988 AC
key was that occupier had put fireman at risk by creating danger
Persons in exercise of their calling (professionals) and Occupational Liability
s2(3)(b)
“would expect that they will appreciate and guard against any special risks ordinarily incident to it, so far as occupier leaves him free to do so “
==> expected to take greater care.
!=> voluntary assumed risks
Chimney sweeps ignored advice about possible CO fume suffocation==> OL(-)
Denning “The householder is not bound to watch over him to see that he comes to no harm”
BUT was lighting of boiler (tho warned about) “ordinarily incident” to sweeps’ calling?
Variants
Visitor expected to appreciate guard against risks NOT normally associated with job =OL(+)
example collapsing brickwork (Eden v West 2002 EWCA)
Potentially dangerous pond on holiday site. Occupier under obligation to draw parents attention to obvious danger?
(-) sufficient that pond marked on plans
Borne Leisure v Marsden 2009 EWCA
Occupiers liability and chidren
Berries Glasgow Corp v Taylor
Jolley v Sutton LBC
Council found liable when kid injured on abandoned sailing boat
==> esp IF
a) injury serious
OR b) very young children
THEN Court is generous towards children
BUT
assume very young children supervised by adult
Phipps v Rochester Corp 1955
Held Liability- as per DEVLIN
“it would not be socialy desirable if parents were as a matter of course able to shift the burden of looking after their children from thir own shoulders to those of persons who happen to have acessible bits of land”
ALSO
social habits of surrounding area
Simkiss v Rhondda BC 1983
Liable (-) still. Accompaniment is to be expected
Difference between liability under Common Law in 2 cases
- In public someone sees another about to walk over a cliff and fails to shout a warning
2 Occupier sees another about to walk over a cliff on premises and fails to shout a warning
2 Liability + as there is a degree of proximity between Occupier and V
Person invited onto premises to sleep in bed, begins to jump up and down.
Person needs permission from Occupier for purpose in question. Here not given =>
may cease to be a visitor => trespasser+
Quote Scrutton in The Carlgarth 1927
“When you invite a person into your house to use the staircase, you do not invite him to slide down the stairs”
OR
Geary v JD Wetherspoon 2011 EWHC 1506
Slight difference:
Claimant(-)
She knew that sliding down the banisters was not permitted, but she chose to do it anyway. She was therefore the author of her own misfortune. The defendant owed no duty to protect her from such an obvious and inherent risk.
Customer of pub wandered into garden attacked by a dog.
Gould v McAuliffe 1941
Held
no notice on gate that private → landlord did not take reasonable steps to inform visitor of areas out of bounds.
BUT
no expectation to post notice in areas where no one would reasonably expect a visitor (lawful visitors are contractual entrants, invitees, licencees) to go.
Poisonous berries easily accessible from play area in a public garden. Boy ate them and died. No warning signs around berries. Corporation knew of Hazard. Corporation liable?
(+)
Glasgow Corp v Taylor 1922
Old case.
Occupier here Corp must protect against alluring dangers, ex poisonous berries
Child treated as implied licencee as no common interest (like friends invited to dinner)==> duty to warn of any trap or concealed danger on premises && Occupier O had actual knowledge of such
Principle: Higher duty of care is owed to children, now enforced by statute s.2(3)(a) OLA 1957
“Occupier must be prepared for children to be less careful than adults”
Definition of occupier
S1(2)
A person who at common law would be treated as an occupier.
sufficent degree of control over the state of the premises
Can an occupier limit his liability under OLA 57?
Yes by displaying a notice on the premises or using a term in the contract
Short cut on farmers land used for 35 years.
Plaintiff used short cut and was attacked by horse. Farmer had protested before but not taken legal proceedings.
Held
Since no legal action, farmer had given implied consent. → implied licensee →occupier has duty to warn licensee about any trap or concealed danger…(horse)→ occupier liable +
Implied licensee
common law
No common interest between occupier and entrant but implied or explicit permission to be there→ occupier has duty to warn licencee about any trap or concealed danger
Invitee
Persons who enter premises to pursue common purpose with occupier
Contractual entrants
Common law
highest standard of care
entered premises based on terms of a contract
If visitor lawful () what is standard of duty owed by occupier?
OLA 1957
The common duty of care to all the occupiers visitors.(includes common duty of humanity)
Chimney sweeps ignored warnings from an engineer about poisonous fumes died when sweeping chimney. Who is liable?
Roles v Nathan 1963!
Held
If danger ordinary part of claimants job, expected to protect against risks
JFK blown away in newspaper while chimney sweeps die in the Texas book depository. Imagine switching roles with shooter who was called Nathan Oswald
9 year old Child runs on railway hit by train. Hole in fence repaired several times.
Edwards v Rail Executive 1952
Held
RE had taken reasonable steps →liable(-)
Were police officers not on duty but on a persons property once asked to leave immediately trespassers?
Robson v Lallett 1967
Trespassers (-)
Reasonable opportunity must be given for person to leave before they become T
Man died at car race. Barriers badly constructed.
Did man, as occupiers contested, consent to risk of being present?
White v Blackmore 1972
Volenti non fit injura defence will only succeed if vIsitor aware of risk and has a genuine, free choice to agree to it.
Here based on poorly constructed barriers had not agreed to that (level of) risk.
→ CoC broken (-) ? → race organiser= occupier liable (+)
But, if the organisers fail to take reasonable precautions, they cannot excuse themselves from liability by invoking the doctrine ofvolenti non fit injuria: for the simple reason that the person injured or killed does not willingly accept the risks arising from their want of reasonable care,
ALT
no-one liable?
Claimaint entered lift which had just been repaired. Who was liable or injury? Occupier or contractor?
Contractor liable (+)
Haseldine v Daw 1941
Situation where considerable technical expertise needed to check work ex here after a lift repair && reasonable for occupier to entrust sich work to an expert contractor → Occupier may NOT be liable
Variant
NO technical expertise required and Occupier does not check work
Woodward v Mayor of Hastings 1954
Occupier act not reasonable → liable(+)??
Corporation liable for unspervised 5 yo who fell down a hole on some wasteland?
Phipps v Rochester Corp 1955
Council or Corp liable (-)
Occupiers are entitled to assume that young children are normally going to be supervised by an adult,
Distinction between big and little children.
Variant
⇒ Big child falls down a hole on wasteland, also unsupervised.
- Workmen left an upright shovel across a hole to alert pedestrians of the hole
- C was blind, tripped over the shovel, fell and was seriously injured
Haley v London Electricity Board
•Held: It was reasonably foreseeable that a blind man would be injured by the defendant’s action
What was Caparo v Dickmann about?
–Caparo relied on an audit performed by Dickman (auditors) in taking over a company.
–Audit found to have false information as company worthless
–Caparo sued for loss as a result of Dickman’s negligence in the audit preparation
–Held: No relationship of proximity between the parties
–Audit was meant for the company not investors
Exception to Omissiosns: Assumption of responsibility by being member of police force to colleagues
Costello v Chief Constable of Northumbria Police
Claimant (police officer) was attacked by a prisoner from his cell.Her colleague heard her screams but did not act to help her
Claimant sued claiming a duty to help her was owed by the police to her
Court agreed. The police officer had assumed a responsibility to help other members of the force
Barrett v Ministry of Defence
Drunken sailors
The MOD were liable, not through breach of a duty of care to prevent him becoming dangerously intoxicated, Until the deceased became unconscious, he alone carried the legal responsibility for his own actions, however, once the senior officer assumed a responsibility for him by ordering the Petty Officer to look after him a duty of care did arise. He was in breach of duty by failing to ensure the deceased received the appropriate supervision.
Bolam v. Friern HMC (1957) 2 All ER 118
Negligence – test – body of medical opinion
A doctor was not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that art merely because there was a body of opinion that took a contrary view. For negligence to be proved, the doctor had to fall below a standard of practice recognised as proper by a responsible body of opinion at the time of the alleged negligence.
=> “the ordinary skilled man exercising and professing to have that special skill”
=> “he [the defendant – 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.’
ALSO
Bolitho v City and Hackney Health Authority
Opinion of body of doctors must be logical
Wilsher v Essex Area Health Authority [1988]
junior doctors. Junior doctor held to the standard of a qualified doctor
