tort Flashcards
Blythe v Birmingham Waterworks (N)
Negligence is an act or omission which falls short of the standard expected of the reasonable man
Caparo v Dickman (N)
3 stage test for negligence:
Was the damage foreseeable?
Is there a sufficiently close relationship?
Is it fair, just and reasonable to impose a duty?
Kent v Griffiths (N)
The first test for negligence (foreseeable damage) - c had asthma attack and hospital did not send ambulance
Bourhill v Young (N)
Second test for negligence - hearing a crash is not a sufficiently close relationship
Mcloughlin v O’Brien (N)
‘Aftermath rule’ created for family embers and rescuers - family was in crash and saw them being operated on and was a sufficiently close relationship
Hill v Chief Constable of West Yorkshire (N)
Police don’t owe a duty of care to everyone in the public - too difficult to operate
Capital + counties plc v Hampshire County Council (N)
Duty of care owed to the public as they made the fire worse
UKSC4 (N)
Police can’t be sued for negligence however if a third party is injured due to negligence police are liable
Bolam (N)
Professionals will be judged by the standard of other professionals - if there is a substantial body of opinion within that profession that would support that course of action then he has not broken his duty
Montgomery v Lanarkshire Health Board (N)
Called Bolam ‘unsatisfactory’
Shouldn’t use defence that other doctors would have done it
Mullin v Richards (N)
Breach by children - judge at standard expected for someone of that age
Nettleship v Weston (N)
Learners judged at standard of experienced person
Roe v Minister of Health (N)
No breach if risk is unknown
Paris v Stepney Borough Council (N)
higher risk of losing sight if half blind
Bolton v Stone (N)
If risk is low duty of care discharged
Haley v London Electricity board (N)
if risk is high - standard expected is higher
Latimer v AEC (N)
Only reasonable precautions expected
Watt v Hertfordshire County Council (N)
Lower standard of care required in emergency
Barnett v Chelsea and kensington hospital (N)
factual causation test
The Wagon Mound (N)
Remoteness of damage - must be reasonably foreseeable
Hughes v lord Advocate (N)
D liable if type of injury was foreseeable
Bradford v Robinson Rentals (N)
Although rare injury - foreseeable some injury would happen
Doughty v Turner Asbestos (N)
Small splashes would be foreseeable but not level of injury that happened
Smith v leech Brain (N)
Eggshell skull - take victim as you find him
what question should be addressed when deciding on the first criteria in tort (was damage/harm foreseeable) (N)
would a reasonable person in D’s position have foreseen that somebody in C’s position might be injured
what may be said about the decision made in McLoughin v O’brien regarding a sufficiently close relationship (N)
may be argued that it opened the ‘flood gates’ allowing too many people to claim
why is the decision in Hill v chief Constable of police good (N)
police shouldn’t be expected to have a DOC as may affect their policing if they’re trying to avoid being sued
why was a doc owed in capital + counties plc but not hill?(N)
they made the situation worse
what standard is one judged by (N)
someone reasonable in that profession
why may the decision in nettleship v Weston be considered good but also bad? (N)
- possibly unfair on d (bad)
- keeps public safe (good)
what influences the standard expected of a defendant (N)
the risk
if there is a higher risk what will happen to the standard expected (N)
increase
why is the decision made in Watt v Hertfordshire good (N)
doesn’t stop people from helping each other
what is remoteness of damage (N)
whether something was reasonably foreseeable
what are the three main evaluation points for negligence (N)
cost, delay, legislation
what effect will a defence of contributory negligence have, according to the Law Reform (contributory negligence) act 1945? (CN)
will reduce claim according to extent c contributed to own harm
Sayers v Harlow DC (CN)
stood on toilet roll holder - pay out reduced by 25% as c’s actions at fault
Jayes v IMI (CN)
lifted saften guard when cleaning blade - 100% of claim lost as shouldn’t have lifted guard
From v Butcher (CN)
not wearing seatbelt in crash - claim reduced by 20%
Stinton v stinton (CN)
c knew d had been drink driving - claim reduced by 33%
what type of negligence is consent not available as a defence for
traffic accidents
what must d show in order to use the defence of consent
- c knew precise risk involved
- c exercised free choice
- voluntarily accepted risk
which case showed that C must know the exact risk in order for D to use the defence of consent
Stermer v Lawson
Smith v Baker (consent)
C must’ve chosen, not had no other choice in order for D to use consent
Haynes v Harwood (consent)
police officer is not voluntarily accepting a risk
Ogwo v Taylor (consent)
fireman is not voluntarily accepting a risk
is the consent test objective or subjective
subjective - so not about the reasonable person
sideway v Bethlam Hospital (consent)
consent still valid even though wasn’t told all of the risks of the operation as doctors don’t need to tell you everything
ICL v Shatwell (consent)
doing own way against employers instruction is volunary acceptance of risk
what is a tort feasor (VL)
someone who committed the tort
what is vicarious liability (VL)
where a 3rd party (usually an employer) has a legal responsibility for unlawful acts of another - usually an employee
Jones v Towerboot (VL)
co worker racist - sued employer
viasystems v Thermal Transfer (VL)
2 employers can be held 50/50 responsible
what test was established for vicarious liability in the Civil Liability Contributions Act 1978 (VL)
must prove there was there was a tort and then:
1) was an employee (rather than independent contractor)
2) acting in the course of employment when tort happened
what is the basic definition of employee (VL)
contract of service not contract for services (independent contractor)
Yewens v Noakes (VL)
if you’re told what to do and how to do it - you’re an employee, if you’re just told what to do you’re an independent contractor
Walker v Crystal Palace (VL)
footballers are under a high level of control so considered an employee
Hawley v Luminar Leisure (VL)
nightclub owners had enough control over bouncer for him to be an employee
which profession does the control test not work for? (VL)
doctors as they’re still considered an employee
what is the test for whether someone is considered an employee or not? (VL)
how much control they have, integration test and economic reality/multiple test
mersey docks v coggins (VL)
in case of a borrowed employee both companies have control so it will override written claim of who is the employer
what is the integration test? (VL)
more closely aligned with core of business more likely they will be considered an employee
stevenson v harrison (VL)
must be an employee if work is fully integrated in business (allows for doctors)
which profession does the integration test make an employee (when they should be considered an independent contractor) (VL)
examiners
what is the economic reality / multiple test (VL)
1) they had a wage - whereas independent contractors usually have piecemeal payments and have mutual obligation - Carmicheal (employer pays and employee does the work) - Ready Mix Concrete v Minister of Pensions
2) express or implied acceptance that work is subject tp employers control - Autoclenz v Belcher
3) other considerations of contract - consistent with employment contract ( e.g. had a uniform and not allowed to work for anyone else - less likely to be an employee if they use their own trucks ad delegate work) - Ready Mix Concrete v Minister of Pensions
what is an evaluation point surrounding the economic reality test (VL)
more fair and allows for cases to be decided properly however allows for too much judicial decision
Catholic child welfare society v claimants of institute of the brothers of the christian schools (VL)
vicarious liability can extend to non-employers if they are
1) sufficiently similar (akin) to one of an employer - employee relationship
2) there is a close connection between relationship and tort
Mohamud v Morrison’s supermarket (VL)
restated catholic child welfare v institute rule - non-employers can have vicarious liability
1) consider field of activities they have been entrusted with
2) sufficient connection between role and wrongful conduct
cox v ministry of justice (VL)
a prisoner is considered an employee of the ministry of justice
what does in course of employment include? (VL)
doing job badly but not acting outside of what they’re employed to do
century insurance v NI Road Transport Board (VL)
employer vicariously liable because was doing job even though they were doing it badly
Beard v London Omnibus (VL)
bus conductor drove bus and crashed - employer not vicariously liable as D did something he was not employed to do
when is an employer liable when an employee acts against orders? (VL)
if it benefits the business
Limpus v London General (VL)
bus driver instructed not to race other bus drivers, C injured when bus driver was racing - benefit business as going faster
Rose v Plenty (VL)
milkman not allowed to use child helper - boy hurt whilst helping still liable as benefitted business
Twine v Beans Express (VL)
driver told not allowed to give lifts - gave a lift and C’s husband died - didn’t benefit business vicarious liability not available
what is a frolic of his own (VL)
tort happens whilst doing something, or at a time, outside the area or time of their work - not considered course of employment
Hilton v Thomas Burton (VL)
not in course of employment as took unauthorised break
Smith v Stages (VL)
paid for travelling time, accident happened between work sites - was in course of employment
A+W Hemphill v Williams (VL)
lorry driver detoured from expected route taking boys home - got injured - was in course of employment even though detouring
when is vicarious liability available in criminal acts (VL)
if there is a close connection between crime and what they were employed to do
Catholic Child Welfare v the Institute (VL) - course of employment
abuse toward children was sufficiently connected so was in course of employment
Mattis v Pollock (VL)
bouncer encouraged to be intimidating - act was in course of employment as crime and job sufficiently connected
N v Chief Const Merseyside Police (VL)
out of working hours, used uniform to gain trust and access a vulnerable girl - not sufficient connection, not in course of employment
why is vicarious liability fair? (VL)
gives victim just remedy - employer more likely to have financial means to pay - likely to have insurance to cover the claims
why may cases like Rose v Plenty and Limpus v London be considered unfair (VL)
the employer was not at fault
Hilton v Thomas Burton (VL)
husband got killed but couldn’t claim through vicarious liability because on a frolic - unfair as suffered a great loss
why was Smith v Stages different to Hilton v Thomas Burton (VL)
different outcome than Hilton v Thomas Burton even though similar facts as there was a difference purpose to the employees journey
Beard v London General (VL)
not able to prove vicarious liability - went outside of what they were employed to do
when are courts more prepared to make employer vicariously liable (VL)
when employee commits crime in course of employment
why may new methods of working confuse vicarious liability (VL)
working from home / flexible working - not always possible to closely supervise employees - is it fair that employers accept liability for an employees actions when they’re working away from home
which act allows employers to recover from any compensation they must pay (VL)
Civil Liability (Contribution) Act 1978
which acts cover lawful visitors and trespassers in the law of occupiers liability (OLA)
lawful visitors - occupiers liability act 1957
trespassers - occupiers liability act 1984
wheat v E.Lacon and Co. (OLA)
may be more than one occupier - can choose which occupier to sue (usually the one with insurance)
Harris v Birkenhead corp (OLA)
in occupation as effectively in control of premises
Bailey v Armes (OLA)
may be no claim if no one in sufficient control of premises
what is a premises and which act is it in? (OLA)
fixed or movable structure, including vehicle, vessel or aircraft - s.1(3) occupiers liability act 1957 (covers both acts)
wheeler v Corpas (OLA)
ladder can be a movable structure
how can you tell the difference between a lawful visitor or trespasser (OLA)
lawful visitor - express or implied permission and repeated visits
trespasser - express lack of permission (staff only sign) or implied lack of permission (staying after closing sign)
lowery v walker and Harvey v Plymouth CC (OLA)
repeated visits gave implied permission
Jolley v Sutton BC (OLA)
interested child is not a trespasser (allurement) - only applies to children
Robson v Halett (OLA)
canvassers of any kind = lawful unless expressly forbidden
what are statutory lawful visitors (OLA)
firemen, police, gas meter reader
what must be proven in occupiers liability (OLA)
1) are they an occupier?
2) is it a premises?
3) a lawful visitor or trespasser?
what is the duty of care for a lawful visitor (OLA)
keep visitor reasonably safe for the purpose they were invited for
Edwards v Sutton (OLA)
no duty of care for lawful visitor if there is an obvious danger
Laverton v Kiapasna Takeaway (OLA)
no duty of care if taken reasonable precautions for lawful visitor
which kind of visitor is there an extra standard of care for (OLA)
children
Moloney v London BC (OLA)
was breach even though adult wouldn’t fall through bannisters - child visitors require extra precautions
Bourne Leisure v Marsden (OLA)
showing parents any dangers discharges duty to child visitors
who is there a lower standard of care for (OLA)
specialist visitors
Roles v Nathan (OLA)
knew CO poisoning was a risk - no DOC as was a specialist visitor
Ashdown v Williams and sons (OLA)
reasonable warnings will discharge duty (‘at own risk’) for lawful visitor unless contradicts UCTA 1977
barnett (OLA)
factual causation
wagon mound (OLA)
remoteness of damage
Haseldine v Daw (OLA)
independent contractors - contractor liable not occupier as would have knowledge beyond occupier
Woodward (OLA)
school got independent contractor to clean snow - occupier liable as could’ve checked a simple task
if a lawful visitor is hurt as a result of the work of the independent contractor, is the occupier liable (OLA)
no
what is contributory negligence (OLA)
reduces damages paid by proportion they’re responsible for their own injuries
what can you consent to in occupiers liability (OLA)
obvious dangers
Geary v Wetherspoons (OLA)
obvious danger so consented to it - no occupiers liability
what is the causation for OLA
same as negligence
what is a private nuisance (PrivN)
unlawful indirect interference with a persons use or enjoyment of land coming from neighbouring land
what must be proven for a private nuisance (PrivN)
1) valid claimant and defendant
2) interference in form of damage or loss of amenity
3) interference is sufficiently serious I all the circumstances to be unlawful
hunter v Canary Wharf (PrivN)
to be a valid claimant must have legal interest in land
what must be present for a valid defendant (including two cases) (PrivN)
- creator of nuisance
- sedleigh - Denfield v O’Callaghan - occupier who is aware of nuisance
- Leakey v National Trust - knew natural causes posted nusicance
what are valid forms of interference in private nuisance (including two cases) (PrivN)
- indirect (e.g. ash and noise)
- physical damage (St Helens)
- loss of amenity / enjoyment (Miller v Jackson - lost use of their garden)
what are the factors which affect the reasonableness of an interference (PrivN)
- locality
- duration
- degree
- sensitivity
- social benefit
- motive
Halsey v Esso (PrivN)
interference was sufficiently serious due to area and what you would expect there (locality) - was a posh area
Crown River Cruises v Kimbolton Fireworks (PrivN)
20 min nuisance - not usually accepted due to short duration however caused a lot of damage so smaller threshold for the duration (high threshold when damage is loss of amenity)
Barr v Biffa waste (PrivN)
constant bad smell - unreasonable
- high degree of interference if goes on for a long time
Network Rail v Morris (PrivN)
claimant was more affected than the average claimant would be - only actionable if D could foresee this (sensitivity)
Miller v Jackson (PrivN)
social benefit of community outweighed the individuals right - will affect whether damages or an injunction is given
Hollywood silver Fox Farm v Emmett (PrivN)
dispute going on between neighbours - motive made nuisance unreasonable
what is prescription in private nuisance (PrivN)
- if there is not complaint in 20+ years - there is a right to continue (defence)
Sturges v Bridgman (PrivN)
actionable claim as although nuisance over 20 years but only became a nuisance due to a new room built
what is not a defence to private nuisance (PrivN)
- moving to nuisance (Sturges)
- C could’ve helped himself (e.g. shutting windows)
- D was using reasonable care
allen v Gold Oil Refining (PrivN)
statutory defence against any claim - resident affected by oil refinery
Gillingham BC v Medway Dock (stat authority)
planning permission given - allowed to use defence of statutory authority
Wheeler v Saunders (stat authority)
limitations of statutory authority - was given permission but defence failed as planning permission didn’t change character of neighbourhood (to use planning permission as defence must change character of neighbourhood)
coventry v Lawrence (RvF remedies)
injunction is a default damage but defendant may argue that compensation is better and this is usually preferred by the judge
what is the remedy for private nuisance (PrivN)
default = injunction but D may argue damages would be better and this is usually preferred by the judge
- abatement - allowed to take self help reasonable steps (e.h. chopping off branches in the way)
what is the rule from Rylands v Fletcher (RF)
where a persons property is damaged by the escape of non-naturally stored material on adjoinging property
what is the criteria for the rule from Rylans v Fletcher (RF)
1) valid claimant and defendant
2) the bringing onto land and accumulation
3) which is non-natural use of land
4) a thing likely to cause mischief is it escapes
5) which does escape
6) and causes reasonably foreseeable damage to adjoining property
how do you decide if someone is a valid claimant or defendant (RF)
claimant must have interest in land
defendant must be an owner or occupier - have some control
how do you know if something is brought onto the land and accumulated (RF)
- not already naturally present or naturally accumulates
- Brought onto D’s land and/or be storing it there
- be articifical
Giles v Walker (RF)
the material is not already naturally present
Ellison v MOD (RF)
the material is not already naturally accumulating
Rickards v Lothian (RF)
non natural use of land is ‘special’ and ‘not ordinary’ - water in a sink is natural use of the land
British Celanese (RF)
need to look at context of the land - storing foil on industrial estate is natural - if there’s a benefit to accumulation it will be natural but if there is a high risk it will outweigh benefit
Cambridge Water v Easter counties Leather (RF)
even if an industrial estate some items may be considered unnatural of stored in excess
Transco v Stockport (RF)
non-natural updated to mean ‘extraordinary or usual’ - general community benefit = insufficient
what is the meaning of the criteria, ‘is it likely to cause mischief if it escapes’ in Rylands and Fletcher? (RF)
is it likely to be dangerous
what is the test for whether something is likely to cause mischief if it escapes in Rylands and Fletcher
foreseeability test - not a test for whether escape is foreseeable but whether damage is foreseeable if escape were to occur
what did Transco say about the test for whether something is likely to cause mischief if it were to escape (RF)
gives rise to ‘exceptionally high risk of danger should there be an escape even if it is unlikely’
What should be proven after proving that something is likely to cause mischief if it escapes? (RF)
that it did escape
Wyvern Tyres v Gore (RF)
fire spread from D to C - fire was not accumulated - tyres happened to catch fire so did not ‘escape’
Read v Lyons (RF)
shell in factory exploded and injured inspector - didn’t escape so claim failed
what claims are not allowed in the rule from Rylands and Fletcher (RF)
no personal injury claims allowed
what should be proved after proving that the thing escaped? (RF)
it caused reasonably foreseeable damage to adjoining property
Cambridge Water v Easter Counties Leather (RF)
damage not reasonably foreseeable from site of spillages as too remote - no claim
Peters v prince of wales theatre (RF)
consent is a defence to the rule from Rylands v Fletcher (e.g. if there is a mutual benefit)
Perry v Kendricks Transport (RF)
act of a stranger is a defence to RvF - if a stranger who D has no control over causes the escape there is no claim
Nichols v Marsland (RF)
act of god is a defence to RvF - only if unforeseeable (e.g. storms) - if bad weather common in the area cannot use
what is the defence of statutory authority (RF)
authorised by parliament
which defence for RF does Law Reform (Contributory Negligence Act) 1945 allow for? what happens when it is used? (RF)
contributory negligence - damages will be reduced by the amount the claimant contributed to the damage
what are the remedies of RF (RF)
damages
why is Rylands v Fletcher rule not as broad as it was intended? (RF)
judicial development restricted use
why may it be difficult to use the rule form rylands v fletcher for cases involving pollution (RF)
- not unusual for an industrial property - transco
how does Cambridge water limit the usefulness of ryland v fletcher (RF)
foreseeability test - cannot claim if damages unforeseeable
how does Wyvern Read v Lyons limit the use of ryland v fletcher (RF)
cannot use for fire
