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OCR A-Level law > tort > Flashcards

tort Flashcards

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1
Q

Blythe v Birmingham Waterworks (N)

A

Negligence is an act or omission which falls short of the standard expected of the reasonable man

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2
Q

Caparo v Dickman (N)

A

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?

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3
Q

Kent v Griffiths (N)

A

The first test for negligence (foreseeable damage) - c had asthma attack and hospital did not send ambulance

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4
Q

Bourhill v Young (N)

A

Second test for negligence - hearing a crash is not a sufficiently close relationship

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5
Q

Mcloughlin v O’Brien (N)

A

‘Aftermath rule’ created for family embers and rescuers - family was in crash and saw them being operated on and was a sufficiently close relationship

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6
Q

Hill v Chief Constable of West Yorkshire (N)

A

Police don’t owe a duty of care to everyone in the public - too difficult to operate

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7
Q

Capital + counties plc v Hampshire County Council (N)

A

Duty of care owed to the public as they made the fire worse

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8
Q

UKSC4 (N)

A

Police can’t be sued for negligence however if a third party is injured due to negligence police are liable

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9
Q

Bolam (N)

A

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

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10
Q

Montgomery v Lanarkshire Health Board (N)

A

Called Bolam ‘unsatisfactory’

Shouldn’t use defence that other doctors would have done it

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11
Q

Mullin v Richards (N)

A

Breach by children - judge at standard expected for someone of that age

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12
Q

Nettleship v Weston (N)

A

Learners judged at standard of experienced person

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13
Q

Roe v Minister of Health (N)

A

No breach if risk is unknown

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14
Q

Paris v Stepney Borough Council (N)

A

higher risk of losing sight if half blind

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15
Q

Bolton v Stone (N)

A

If risk is low duty of care discharged

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16
Q

Haley v London Electricity board (N)

A

if risk is high - standard expected is higher

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17
Q

Latimer v AEC (N)

A

Only reasonable precautions expected

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18
Q

Watt v Hertfordshire County Council (N)

A

Lower standard of care required in emergency

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19
Q

Barnett v Chelsea and kensington hospital (N)

A

factual causation test

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20
Q

The Wagon Mound (N)

A

Remoteness of damage - must be reasonably foreseeable

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21
Q

Hughes v lord Advocate (N)

A

D liable if type of injury was foreseeable

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22
Q

Bradford v Robinson Rentals (N)

A

Although rare injury - foreseeable some injury would happen

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23
Q

Doughty v Turner Asbestos (N)

A

Small splashes would be foreseeable but not level of injury that happened

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24
Q

Smith v leech Brain (N)

A

Eggshell skull - take victim as you find him

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25
Q

what question should be addressed when deciding on the first criteria in tort (was damage/harm foreseeable) (N)

A

would a reasonable person in D’s position have foreseen that somebody in C’s position might be injured

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26
Q

what may be said about the decision made in McLoughin v O’brien regarding a sufficiently close relationship (N)

A

may be argued that it opened the ‘flood gates’ allowing too many people to claim

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27
Q

why is the decision in Hill v chief Constable of police good (N)

A

police shouldn’t be expected to have a DOC as may affect their policing if they’re trying to avoid being sued

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28
Q

why was a doc owed in capital + counties plc but not hill?(N)

A

they made the situation worse

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29
Q

what standard is one judged by (N)

A

someone reasonable in that profession

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30
Q

why may the decision in nettleship v Weston be considered good but also bad? (N)

A
  • possibly unfair on d (bad)

- keeps public safe (good)

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31
Q

what influences the standard expected of a defendant (N)

A

the risk

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32
Q

if there is a higher risk what will happen to the standard expected (N)

A

increase

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33
Q

why is the decision made in Watt v Hertfordshire good (N)

A

doesn’t stop people from helping each other

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34
Q

what is remoteness of damage (N)

A

whether something was reasonably foreseeable

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35
Q

what are the three main evaluation points for negligence (N)

A

cost, delay, legislation

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36
Q

what effect will a defence of contributory negligence have, according to the Law Reform (contributory negligence) act 1945? (CN)

A

will reduce claim according to extent c contributed to own harm

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37
Q

Sayers v Harlow DC (CN)

A

stood on toilet roll holder - pay out reduced by 25% as c’s actions at fault

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38
Q

Jayes v IMI (CN)

A

lifted saften guard when cleaning blade - 100% of claim lost as shouldn’t have lifted guard

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39
Q

From v Butcher (CN)

A

not wearing seatbelt in crash - claim reduced by 20%

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40
Q

Stinton v stinton (CN)

A

c knew d had been drink driving - claim reduced by 33%

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41
Q

what type of negligence is consent not available as a defence for

A

traffic accidents

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42
Q

what must d show in order to use the defence of consent

A
  • c knew precise risk involved
  • c exercised free choice
  • voluntarily accepted risk
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43
Q

which case showed that C must know the exact risk in order for D to use the defence of consent

A

Stermer v Lawson

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44
Q

Smith v Baker (consent)

A

C must’ve chosen, not had no other choice in order for D to use consent

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45
Q

Haynes v Harwood (consent)

A

police officer is not voluntarily accepting a risk

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46
Q

Ogwo v Taylor (consent)

A

fireman is not voluntarily accepting a risk

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47
Q

is the consent test objective or subjective

A

subjective - so not about the reasonable person

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48
Q

sideway v Bethlam Hospital (consent)

A

consent still valid even though wasn’t told all of the risks of the operation as doctors don’t need to tell you everything

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49
Q

ICL v Shatwell (consent)

A

doing own way against employers instruction is volunary acceptance of risk

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50
Q

what is a tort feasor (VL)

A

someone who committed the tort

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51
Q

what is vicarious liability (VL)

A

where a 3rd party (usually an employer) has a legal responsibility for unlawful acts of another - usually an employee

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52
Q

Jones v Towerboot (VL)

A

co worker racist - sued employer

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53
Q

viasystems v Thermal Transfer (VL)

A

2 employers can be held 50/50 responsible

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54
Q

what test was established for vicarious liability in the Civil Liability Contributions Act 1978 (VL)

A

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

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55
Q

what is the basic definition of employee (VL)

A

contract of service not contract for services (independent contractor)

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56
Q

Yewens v Noakes (VL)

A

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

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57
Q

Walker v Crystal Palace (VL)

A

footballers are under a high level of control so considered an employee

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58
Q

Hawley v Luminar Leisure (VL)

A

nightclub owners had enough control over bouncer for him to be an employee

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59
Q

which profession does the control test not work for? (VL)

A

doctors as they’re still considered an employee

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60
Q

what is the test for whether someone is considered an employee or not? (VL)

A

how much control they have, integration test and economic reality/multiple test

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61
Q

mersey docks v coggins (VL)

A

in case of a borrowed employee both companies have control so it will override written claim of who is the employer

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62
Q

what is the integration test? (VL)

A

more closely aligned with core of business more likely they will be considered an employee

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63
Q

stevenson v harrison (VL)

A

must be an employee if work is fully integrated in business (allows for doctors)

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64
Q

which profession does the integration test make an employee (when they should be considered an independent contractor) (VL)

A

examiners

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65
Q

what is the economic reality / multiple test (VL)

A

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

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66
Q

what is an evaluation point surrounding the economic reality test (VL)

A

more fair and allows for cases to be decided properly however allows for too much judicial decision

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67
Q

Catholic child welfare society v claimants of institute of the brothers of the christian schools (VL)

A

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

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68
Q

Mohamud v Morrison’s supermarket (VL)

A

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

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69
Q

cox v ministry of justice (VL)

A

a prisoner is considered an employee of the ministry of justice

70
Q

what does in course of employment include? (VL)

A

doing job badly but not acting outside of what they’re employed to do

71
Q

century insurance v NI Road Transport Board (VL)

A

employer vicariously liable because was doing job even though they were doing it badly

72
Q

Beard v London Omnibus (VL)

A

bus conductor drove bus and crashed - employer not vicariously liable as D did something he was not employed to do

73
Q

when is an employer liable when an employee acts against orders? (VL)

A

if it benefits the business

74
Q

Limpus v London General (VL)

A

bus driver instructed not to race other bus drivers, C injured when bus driver was racing - benefit business as going faster

75
Q

Rose v Plenty (VL)

A

milkman not allowed to use child helper - boy hurt whilst helping still liable as benefitted business

76
Q

Twine v Beans Express (VL)

A

driver told not allowed to give lifts - gave a lift and C’s husband died - didn’t benefit business vicarious liability not available

77
Q

what is a frolic of his own (VL)

A

tort happens whilst doing something, or at a time, outside the area or time of their work - not considered course of employment

78
Q

Hilton v Thomas Burton (VL)

A

not in course of employment as took unauthorised break

79
Q

Smith v Stages (VL)

A

paid for travelling time, accident happened between work sites - was in course of employment

80
Q

A+W Hemphill v Williams (VL)

A

lorry driver detoured from expected route taking boys home - got injured - was in course of employment even though detouring

81
Q

when is vicarious liability available in criminal acts (VL)

A

if there is a close connection between crime and what they were employed to do

82
Q

Catholic Child Welfare v the Institute (VL) - course of employment

A

abuse toward children was sufficiently connected so was in course of employment

83
Q

Mattis v Pollock (VL)

A

bouncer encouraged to be intimidating - act was in course of employment as crime and job sufficiently connected

84
Q

N v Chief Const Merseyside Police (VL)

A

out of working hours, used uniform to gain trust and access a vulnerable girl - not sufficient connection, not in course of employment

85
Q

why is vicarious liability fair? (VL)

A

gives victim just remedy - employer more likely to have financial means to pay - likely to have insurance to cover the claims

86
Q

why may cases like Rose v Plenty and Limpus v London be considered unfair (VL)

A

the employer was not at fault

87
Q

Hilton v Thomas Burton (VL)

A

husband got killed but couldn’t claim through vicarious liability because on a frolic - unfair as suffered a great loss

88
Q

why was Smith v Stages different to Hilton v Thomas Burton (VL)

A

different outcome than Hilton v Thomas Burton even though similar facts as there was a difference purpose to the employees journey

89
Q

Beard v London General (VL)

A

not able to prove vicarious liability - went outside of what they were employed to do

90
Q

when are courts more prepared to make employer vicariously liable (VL)

A

when employee commits crime in course of employment

91
Q

why may new methods of working confuse vicarious liability (VL)

A

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

92
Q

which act allows employers to recover from any compensation they must pay (VL)

A

Civil Liability (Contribution) Act 1978

93
Q

which acts cover lawful visitors and trespassers in the law of occupiers liability (OLA)

A

lawful visitors - occupiers liability act 1957

trespassers - occupiers liability act 1984

94
Q

wheat v E.Lacon and Co. (OLA)

A

may be more than one occupier - can choose which occupier to sue (usually the one with insurance)

95
Q

Harris v Birkenhead corp (OLA)

A

in occupation as effectively in control of premises

96
Q

Bailey v Armes (OLA)

A

may be no claim if no one in sufficient control of premises

97
Q

what is a premises and which act is it in? (OLA)

A

fixed or movable structure, including vehicle, vessel or aircraft - s.1(3) occupiers liability act 1957 (covers both acts)

98
Q

wheeler v Corpas (OLA)

A

ladder can be a movable structure

99
Q

how can you tell the difference between a lawful visitor or trespasser (OLA)

A

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)

100
Q

lowery v walker and Harvey v Plymouth CC (OLA)

A

repeated visits gave implied permission

101
Q

Jolley v Sutton BC (OLA)

A

interested child is not a trespasser (allurement) - only applies to children

102
Q

Robson v Halett (OLA)

A

canvassers of any kind = lawful unless expressly forbidden

103
Q

what are statutory lawful visitors (OLA)

A

firemen, police, gas meter reader

104
Q

what must be proven in occupiers liability (OLA)

A

1) are they an occupier?
2) is it a premises?
3) a lawful visitor or trespasser?

105
Q

what is the duty of care for a lawful visitor (OLA)

A

keep visitor reasonably safe for the purpose they were invited for

106
Q

Edwards v Sutton (OLA)

A

no duty of care for lawful visitor if there is an obvious danger

107
Q

Laverton v Kiapasna Takeaway (OLA)

A

no duty of care if taken reasonable precautions for lawful visitor

108
Q

which kind of visitor is there an extra standard of care for (OLA)

A

children

109
Q

Moloney v London BC (OLA)

A

was breach even though adult wouldn’t fall through bannisters - child visitors require extra precautions

110
Q

Bourne Leisure v Marsden (OLA)

A

showing parents any dangers discharges duty to child visitors

111
Q

who is there a lower standard of care for (OLA)

A

specialist visitors

112
Q

Roles v Nathan (OLA)

A

knew CO poisoning was a risk - no DOC as was a specialist visitor

113
Q

Ashdown v Williams and sons (OLA)

A

reasonable warnings will discharge duty (‘at own risk’) for lawful visitor unless contradicts UCTA 1977

114
Q

barnett (OLA)

A

factual causation

115
Q

wagon mound (OLA)

A

remoteness of damage

116
Q

Haseldine v Daw (OLA)

A

independent contractors - contractor liable not occupier as would have knowledge beyond occupier

117
Q

Woodward (OLA)

A

school got independent contractor to clean snow - occupier liable as could’ve checked a simple task

118
Q

if a lawful visitor is hurt as a result of the work of the independent contractor, is the occupier liable (OLA)

A

no

119
Q

what is contributory negligence (OLA)

A

reduces damages paid by proportion they’re responsible for their own injuries

120
Q

what can you consent to in occupiers liability (OLA)

A

obvious dangers

121
Q

Geary v Wetherspoons (OLA)

A

obvious danger so consented to it - no occupiers liability

122
Q

what is the causation for OLA

A

same as negligence

123
Q

what is a private nuisance (PrivN)

A

unlawful indirect interference with a persons use or enjoyment of land coming from neighbouring land

124
Q

what must be proven for a private nuisance (PrivN)

A

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

125
Q

hunter v Canary Wharf (PrivN)

A

to be a valid claimant must have legal interest in land

126
Q

what must be present for a valid defendant (including two cases) (PrivN)

A
  • creator of nuisance
  • sedleigh - Denfield v O’Callaghan - occupier who is aware of nuisance
  • Leakey v National Trust - knew natural causes posted nusicance
127
Q

what are valid forms of interference in private nuisance (including two cases) (PrivN)

A
  • indirect (e.g. ash and noise)
  • physical damage (St Helens)
  • loss of amenity / enjoyment (Miller v Jackson - lost use of their garden)
128
Q

what are the factors which affect the reasonableness of an interference (PrivN)

A
  • locality
  • duration
  • degree
  • sensitivity
  • social benefit
  • motive
129
Q

Halsey v Esso (PrivN)

A

interference was sufficiently serious due to area and what you would expect there (locality) - was a posh area

130
Q

Crown River Cruises v Kimbolton Fireworks (PrivN)

A

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)

131
Q

Barr v Biffa waste (PrivN)

A

constant bad smell - unreasonable

- high degree of interference if goes on for a long time

132
Q

Network Rail v Morris (PrivN)

A

claimant was more affected than the average claimant would be - only actionable if D could foresee this (sensitivity)

133
Q

Miller v Jackson (PrivN)

A

social benefit of community outweighed the individuals right - will affect whether damages or an injunction is given

134
Q

Hollywood silver Fox Farm v Emmett (PrivN)

A

dispute going on between neighbours - motive made nuisance unreasonable

135
Q

what is prescription in private nuisance (PrivN)

A
  • if there is not complaint in 20+ years - there is a right to continue (defence)
136
Q

Sturges v Bridgman (PrivN)

A

actionable claim as although nuisance over 20 years but only became a nuisance due to a new room built

137
Q

what is not a defence to private nuisance (PrivN)

A
  • moving to nuisance (Sturges)
  • C could’ve helped himself (e.g. shutting windows)
  • D was using reasonable care
138
Q

allen v Gold Oil Refining (PrivN)

A

statutory defence against any claim - resident affected by oil refinery

139
Q

Gillingham BC v Medway Dock (stat authority)

A

planning permission given - allowed to use defence of statutory authority

140
Q

Wheeler v Saunders (stat authority)

A

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)

141
Q

coventry v Lawrence (RvF remedies)

A

injunction is a default damage but defendant may argue that compensation is better and this is usually preferred by the judge

142
Q

what is the remedy for private nuisance (PrivN)

A

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)

143
Q

what is the rule from Rylands v Fletcher (RF)

A

where a persons property is damaged by the escape of non-naturally stored material on adjoinging property

144
Q

what is the criteria for the rule from Rylans v Fletcher (RF)

A

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

145
Q

how do you decide if someone is a valid claimant or defendant (RF)

A

claimant must have interest in land

defendant must be an owner or occupier - have some control

146
Q

how do you know if something is brought onto the land and accumulated (RF)

A
  • not already naturally present or naturally accumulates
  • Brought onto D’s land and/or be storing it there
  • be articifical
147
Q

Giles v Walker (RF)

A

the material is not already naturally present

148
Q

Ellison v MOD (RF)

A

the material is not already naturally accumulating

149
Q

Rickards v Lothian (RF)

A

non natural use of land is ‘special’ and ‘not ordinary’ - water in a sink is natural use of the land

150
Q

British Celanese (RF)

A

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

151
Q

Cambridge Water v Easter counties Leather (RF)

A

even if an industrial estate some items may be considered unnatural of stored in excess

152
Q

Transco v Stockport (RF)

A

non-natural updated to mean ‘extraordinary or usual’ - general community benefit = insufficient

153
Q

what is the meaning of the criteria, ‘is it likely to cause mischief if it escapes’ in Rylands and Fletcher? (RF)

A

is it likely to be dangerous

154
Q

what is the test for whether something is likely to cause mischief if it escapes in Rylands and Fletcher

A

foreseeability test - not a test for whether escape is foreseeable but whether damage is foreseeable if escape were to occur

155
Q

what did Transco say about the test for whether something is likely to cause mischief if it were to escape (RF)

A

gives rise to ‘exceptionally high risk of danger should there be an escape even if it is unlikely’

156
Q

What should be proven after proving that something is likely to cause mischief if it escapes? (RF)

A

that it did escape

157
Q

Wyvern Tyres v Gore (RF)

A

fire spread from D to C - fire was not accumulated - tyres happened to catch fire so did not ‘escape’

158
Q

Read v Lyons (RF)

A

shell in factory exploded and injured inspector - didn’t escape so claim failed

159
Q

what claims are not allowed in the rule from Rylands and Fletcher (RF)

A

no personal injury claims allowed

160
Q

what should be proved after proving that the thing escaped? (RF)

A

it caused reasonably foreseeable damage to adjoining property

161
Q

Cambridge Water v Easter Counties Leather (RF)

A

damage not reasonably foreseeable from site of spillages as too remote - no claim

162
Q

Peters v prince of wales theatre (RF)

A

consent is a defence to the rule from Rylands v Fletcher (e.g. if there is a mutual benefit)

163
Q

Perry v Kendricks Transport (RF)

A

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

164
Q

Nichols v Marsland (RF)

A

act of god is a defence to RvF - only if unforeseeable (e.g. storms) - if bad weather common in the area cannot use

165
Q

what is the defence of statutory authority (RF)

A

authorised by parliament

166
Q

which defence for RF does Law Reform (Contributory Negligence Act) 1945 allow for? what happens when it is used? (RF)

A

contributory negligence - damages will be reduced by the amount the claimant contributed to the damage

167
Q

what are the remedies of RF (RF)

A

damages

168
Q

why is Rylands v Fletcher rule not as broad as it was intended? (RF)

A

judicial development restricted use

169
Q

why may it be difficult to use the rule form rylands v fletcher for cases involving pollution (RF)

A
  • not unusual for an industrial property - transco
170
Q

how does Cambridge water limit the usefulness of ryland v fletcher (RF)

A

foreseeability test - cannot claim if damages unforeseeable

171
Q

how does Wyvern Read v Lyons limit the use of ryland v fletcher (RF)

A

cannot use for fire

OCR A-Level law (4 decks)

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