Tort - ALL Flashcards
What are the 4 categories of intentional torts?
- Trespass to land* Trespass to the person* Trespass to goods* Conversion
What is trespass to land?
An: * unlawful * direct interference with * the claimant’s possession of * land.It is actionable per se (i.e. claimant does not need to show any actual damage or injury to the land). The fact that the claimant’s right has been infringed is sufficient.Defences are: lawful entry and necessityRemedies are: damages, injunction, action for recovery of land/order of possession, self-help
What is the possession requirement under the intentional tort of trespass to land?
- To bring an action for trespass to land, the claimant must have exclusive possession of the land.* Note, they do not need to have actual physical possession e.g. they may be away on holiday when the trespass occurs but can still sue provided they have exclusive possession.
What consitutes ‘land’ under the intentional tort of trespass to land?
Trespass protects land and buildings erected on the land. It includes:* the surface of the land and the subsoil. * airspace above the land up to a height necessary for the ordinary use of the land and the buildings on it. Examples of trespass:* Digging a tunnel from your own land underneath your neighbour’s land.* Swinging a crane or flying a drone through your neighbour’s airspace* Placing an ad which overhangs on your neighbour’s property
What is a ‘direct interference’ under the intentional tort of trespass to land?
The interference must be direct. A person directly interferes with land by e.g:* wrongfully setting foot on it, * riding or driving over it, * taking possession of it, * placing or fixing anything on it throwing anything on it* allowing their animals to stray onto property of another.Indirect interference does not amount to trespass. Example: * if the defendant plants a tree on their own land but the roots or branches grow so as to extend under or over the claimant’s land* allowing smoke from a fire to drift repeatedly to a neighbour’s garden* interference by noise, vibrations or bad smellsNote: indirect interferences may give rise to a claim in the tort of nuisance or negligence
Relying on boundary markers fixed by a reputable surveyor, a gardener clears land for a garden that she believes to be hers. In fact, the survey was in error and the gardener cleared a portion of her neighbour’s land. Is the gardener liable for trespass to land?
Yes, it is irrelevant that the gardener mistakenly believed they owned the land.
What is the intention required to commit the tort of trespass to land?
- Trespass to land is usually committed by an intentional act of interference. * The defendant only needs to intend the act of entering the land. * The defendant need not intend to commit the tort of trespass and need not know that the land belongs to another.* It is no defence to mistakenly think that one owns the land or had authority to be there.* A claimant who enters land involuntarily does not commit trespass. Example: a driver who accidentally veered off the road and onto the claimant’s land would not commit the tort of trespass. (Note, they may be liable in the tort of negligence) or a person pushed through a hedge
Can trespass to land be committed by negligence?
- Yes, trespass is usually intentional but case law recognises the possibility of trespass by negligent interference, e.g. when the defendant knows that their animals are likely to enter the claimant’s land but carelessly fails to prevent them from doing so. * A claimant in this situation might prefer to bring the claim in trespass rather than in the tort of negligence, so as to obtain the remedy of an injunction (which is not available in a negligence claim).
What are the 2 defences to the intentional tort of trespass to land?
Lawful Entry* A defendant whose presence on the land is lawful does not commit trespass e.g a defendant who enters land without the permission of the claimant but pursuant to a statutory authority.Necessity* It is a defence to trespass to land for the defendant to show that it was necessary to enter onto the land to preserve life or property, e.g. the defendant entered to stop a fire from spreading or to avoid a speeding vehicle.
What are the 4 remedies available to the intentional tort of trespass to land?
Damages (most common)* Any trespass to land allows the claimant to recover at least nominal damages (it is actionable per se) e.g. if the action was simply to establish their title to the land* If actual loss has been suffered, damages may be awarded to reflect this.Injunction* This would prohibit the defendant from continuing to trespass on the claimant’s land.Action for Recovery of Land - Order for Possession* This would be a remedy for a claimant who is entitled to possession of land has been dispossessed by the defendantSelf-Help* In theory a person who is entitled to possession of land may use reasonable force to remove a trespasser. However, this right is subject to statutory controls. It is an offence for a person, other than a displaced residential occupier, to threaten or use violence to secure entry to premises which are occupied by another.
Which 3 torts are encompassed by the tort of trespass to the person?
- Battery* Assault* False imprisonmentEach tort is actionable per se because their purpose is to protect against interference with the claimant’s bodily integrity. The fact that the claimant’s right to bodily integrity has been infringed is sufficient.They all require intention and a direct interference with the person
What is the tort of battery?
Battery is:* the intentional * direct application of* unlawful force * to the claimant’s person.Defences include consent, necessity, self-defence, lawful arrest and lawful authorityThe remedy is damages
What constitutes unlawful force for the tort of battery?
- Force includes any unwanted physical contact that is not consented to e.g. kissing or touching a person without their consent/a hairdresser dying hair when only a perm was requested* Even contact which is directed at helping the claimant can be a battery if they have not consented, such as unwanted medical treatment e.g. a person having surgery for an injurt and having a mole also removed as a precautionary measureException: Conduct which is generally acceptable in the ordinary conduct of everyday life does not amount to abattery e.g. minor bumping on a crowded bus.
What constitutes direct contact for the tort of battery?
The application of force must be direct e.g. striking or taking hold of the claimant, or throwing something which strikes the claimant. It would also include contact with the claimant’s clothing, such as deliberately throwing paint which splashes the claimant’s jacket.
What is the required intention for the tort of battery?
- The act of applying force must be intentional; an involuntary action does not amount to a battery e.g. a man deliberately pushes his friend into contact with a police officer. The man has committed battery, but his friend has not.* The defendant only needs to intend the application of force, and does not need to intend to harm the victim. The defendant will nevertheless be liable for all direct consequences of the application of force e.g. a security guard takes hold of a woman, causing bruising to her arm. The security guard can be liable for battery because he intended the contact, even though he did not intend the bruising.* An intention to apply force to one person may be ‘transferred’ to a different person e.g. The defendant throws a missile intending it to hit person A, but it in fact strikes person B. The defendant has committed a battery against B.
What is the tort of assault?
An assault is: * an intentional act * which causes the claimant reasonably to apprehend * the immediate and direct infliction of * unlawful force on their person (i.e. apprehension of a battery).Defences include consent, necessity, self-defence, lawful arrest and lawful authorityThe remedy is damages
What is the required intention to commit the tort of assault?
The defendant must have intended the claimant to apprehend the use of force.
What constitutes ‘apprehension of force’ in the context of the tort of assault?
- The claimant must be aware of the threat of force.* No assault is committed if the claimant is unaware of the threat e.g. if the defendant shakes their fist at the victim from behind/the defendant approaches the claimant from behind and strikes them, there is no assault (but there is a battery).* ‘Apprehension’ of force does not require the claimant to be afraid e.g. a demonstrator runs towards a security guard with fists raised to strike him. The guard is capable of defending himself and is not afraid, but the demonstrator has still committed assault.
What does it mean that the apprehension of force must be reasonable for the tort of assault?
- The claimant’s apprehension of immediate force must be reasonable. * If the claimant is aware that the defendant is not capable of carrying out the threat of force, there is no assault e.g. claimant is on a bus and unarmed demonstrators are shouting threats at them from outside the bus.
Can words amount to the tort of assault?
- Yes, the use of words alone can amount to an assault provided they amount to an immediate threat of force e.g. “I’m going to punch you in the jaw” and looking like you are about to/threats on the telephone provided the claimant has reason to believe that they may be carried out in the sufficiently near future to qualify as ‘immediate’.* Words can also negate the threatening nature of a gesture which would otherwise be an assault e.g. the defendant shakes a clenched fist at the claimant, saying “If I weren’t such a good guy, l’d hit you”, there is no assault because the words have removed the threat of immediate force.
What is the tort of false imprisonment?
False imprisonment is:* the unlawful * constraint of the claimant’s freedom of movement from a particular place.Defences include consent, necessity, self-defence, lawful arrest and lawful authorityThe remedy is damagesThe most common example is wrongful arrest by a security guard or the police
What is the intention required to commit the tort of false imprisonment?
- The defendant’s actions in constraining the claimant’s freedom of movement must be intentional. * The defendant does not need to intend that the constraint is unlawful. * It is not a defence that the defendant mistakenly believed that they had the right to detain the claimant.
What constitutes a ‘constraint on the freedom of movement’ for the tort of false imprisonment?
- “Imprisonment’ refers to actions which deprive the claimant of freedom of movement. * There must be a complete constraint on the claimant’s freedom of movement in every direction. * If the claimant is able to move in one direction or the claimant is given a reasonable means of escape, there is no false imprisonment e.g. being prevented from leaving a park by the exit intended, but being free to leave by an alternative exit/not being able to cross a footbridge but being able to walk to another bridge further down the bank.* It is not necessary that the claimant know of the constraint, because the purpose of the tort is to protect the claimant’s freedom of movement
A person is locked in a room and their only route of escape is by climbing through a first floor window. Is the person falsely imprisoned?
Yes, the means of escape is not reasonable as it puts the person at risk of injury.
What are the defences to torts of trespass to the person?
- Consent* Necessity* Self-defence* Lawful arrest and lawful authority
What is the defence of consent to the torts of trespass to the person?
If the claimant consented to the contact, there is a defence.* Medical treatment: An adult claimant who is of sound mind and full understanding is entitled to withhold consent to medical treatment, even when it is necessary to save the claimant’s life (without consent, medical treatment will be battery)* Implied consent: The physical contact that takes place during sport would be a battery were it not for the fact that participants are taken to impliedly consent to contacts which occur when the sport is played within the rules of the game. Players are not taken to consent to contact which is not within the rules of the game. (Also, when harm is caused by playing carelessly, it may be possible to bring a claim in the tort of negligence). * Limits: The claimant’s consent must not be induced by fraud, misrepresentation or duress. Also, policy-based limits to consent likely would prevent a claimant from giving valid consent to the infliction of serious physical injury.
What negates the defence of consent to trespass to the person?
- Fraud, misrepresentation or duress* Policy-based limits (e.g. infliction of serious injury cannot be consented to)* Playing sport outside the rules negates implied consent
What is the defence of necessity to the torts of trespass to the person?
This defence may apply when the defendant acts reasonably to prevent harm e.g. if an adult lacks capacity to consent to treatment, statutes set out the conditions under which treatment is authorised and so provide a defence to what would otherwise be a battery.
What is the defence of self-defence to the torts of trespass to the person?
- It is a defence if the defendant proves that they acted in self defence e.g. in response to an attack by the claimant. * The defence also applies when the defendant believes they are about to be attacked, provided that the belief is both honest and reasonable.* The force used by the defendant in self-defence must be reasonable and proportionate to the force used against them e.g. it will not apply if a defendant causes serious injury in response to a slight blow/responds with a knife to a push.* It also applies when the defendant acts in defence of others or in defence of their property. However, the degree of force which is reasonable is likely to be lower in the case of defence of property than in defence of the person.
What is the defence of lawful arrest and lawful authority to the torts of trespass to the person?
- A person effecting a lawful arrest will have a defence to trespass to the person e.g. taking hold of a person to detain them will not amount to battery and false imprisonment if this was done in the course of a lawful arrest.* There is a defence to false imprisonment if a person is imprisoned pursuant to a statutory power, such as the statutory power authorising the imprisonment of persons who have been sentenced to imprisonment or committed to prison pending trial.
What remedy is available for the tort of trespass to the person?
- Trespass to the person is actionable per se, so if the claimant has not suffered any actual damage, the claimant may still recover an award of nominal damages. * If the claimant has suffered actual damage (e.g. physical injury), an award of compensatory damages may be made to reflect this. * Even if there is no physical injury, damages could be awarded for the indignity or inconvenience caused by the trespass.
What is the tort of trespass to goods?
Trespass to goods is:* an intentional and* direct interference with * the claimant’s possession of goods.Damage is not required as the tort is actionable per se.Remedy: damages
What constitutes an ‘interference’ for the tort of trespass to goods?
Trespass may be committed by:* taking the goods* damaging the goods* interfering with them (e.g. by moving them)* touching goods, provided it goes beyond what is acceptable in everyday life. Examples: hiding someone’s car keys, deliberately scratching a car, or unlawfully applying a wheel clamp to a car to prevent it being moved.
What is the intention required to commit the tort of trespass to goods?
- The defendant must intend to do the act of interference.* The defendant does not need to intend to commit the tort of trespass. * The defendant’s mistaken belief that they own the goods is no defence.
What remedy is available for the tort of trespass to goods?
- The tort is actionable per se, so if the claimant has not suffered any loss, there may be an award of nominal damages. * If the claimant has suffered actual damage (e.g. damage to the goods or interference with use of the goods), an award of compensatory damages may be made to reflect this. * If the claimant has been deprived of the goods, the damages should reflect their fair market value.
What is the tort of conversion?
A person commits the tort of conversion when: * they deal with goods * in a way which is seriously inconsistent * with the rights of the owner.Remedies include an order for delivery of the goods and damagesNote, this tort is more serious than the tort of trespass to goods. In essence, it involves the defendant acting in a way to deprive the owner from use and possession of goods e.g. throwing keys in a pond (as opposed to hiding them)
What is the intention required for the tort of conversion?
- The defendant must intend to do the act of interference with the goods. * They do not need to intend to infringe the claimant’s rights. * It is no defence that the defendant was mistaken as to the ownership of the goods e.g. X steals A’s car and sells the car to B who purchases in good faith. B is liable for conversion. B’s dealing with the car is deliberate. B’s good faith resulting from a lack of awareness of A’s title to the chattel is irrelevant.
What 6 actions constitute conversion of goods?
The defendant commits conversion when their actions are inconsistent with the rights of the owner to such an extent as to exclude the owner from use and possession of the goods. Acts of conversion include:* wrongful acquisition (theft)* wrongful transfer* wrongful detention* substantially changing* severely damaging (e.g. beating property with a bat)* misusing a chattelLiability in conversion does not extend to minor interferences (such as scratches to the panel of another’s car). In such cases, the appropriate cause of action is the tort of trespass to goods, not conversion.
What is the relationship between conversion and trespass?
Trespass to goods involves interference with possession and that conversion involves dealing with goods in a way which is inconsistent with the rights of the owner. Both torts may sometimes exist concurrently.Example: * defendant takes away and steals a book belonging to the claimant. This is both trespass and conversion. * defendant picks up a book belonging to the claimant and throws it across the room. This is a trespass, because there is an interference with possession. However, it is not conversion because the defendant has not asserted rights over the book inconsistent with those of the owner.
What remedies are available for the tort of conversion?
If the defendant still has possession of the claimant’s goods:* An order for delivery of the goods and* Damages - the fair market value of the goodsIf the defendant no longer has possession of the goods, only an award of damages will be available.
Does the defence of contributory negligence apply to intentional torts?
No
Negligence Flowchart
Did D owe claimant a duty of care?* Is this a situation or relationship for which an established duty of care exists? Examples: Doctor › Patient; Employer › Employee; Product Manufacturer › Consumer* If no, Is this a situation where a novel duty can be established based on Foreseeable; Proximity; Fair, just and reasonable.* If not - no duty.Did D breach the duty of care owed?* Did D’s conduct fall below the standard of care of a reasonable person in D’s position based on Magnitude of risk (likeliness of harm and seriousness of potential harm) and Practicability of precautions (include consideration of social utility of conduct)* Also consider whether claimant can establish res ipsa loquitur* If not - no breachDid D’s breach of duty cause damage to claimant? Requirements:* Causation in fact: show that but for D’s breach of duty, the loss would not have happened* No new intervening facts: there must be no new acts which intervene between the defendant’s breach of duty and the claimant’s loss (Intervening act of third party - does not break chain of causation if a foreseeable consquence of D’s negligence/Intervening act of claimant - breaks the chain of causation if C acted entirely unreasonably).* Damage not too remote: show that the claimant’s damage was reasonably foreseeableExceptions: egg shell skull rule and similar in type ruleIf not - no liabilityIf yes, D is liable unless they can establish a defence
What is negligence?
A breach by the defendant of a legal duty to take care which causes damage to the claimant (onus on the claimant to establish this).To establish a prima face case for negligence, the following elements must be proved (in order, on the balance of probabilities):* The defendant owed the claimant a duty of care* The defendant breached that duty and* The defendant’s breach caused damage to the claimant.Liability is based on fault of the defendant. Aim: put the claimant back in the position they would have been in if the tort had not been committed.
What are the established duties of care under negligence law?
Case law has established many situations and relationships in which a duty of care is owed. * Drivers and others on the road (i.e. other drivers, passengers, pedestrians). * Doctors to their patients. * People running a casualty department (including receptionists) and persons presenting themselves complaining of injury or illness)* Teachers to their pupils. * Parents to their children. * Solicitors to their clients. * Employers to their employees. * Manufacturers of products owe to consumers of the products. There are also some situations in which existing case law has decided that no duty of care is owed* police to victims of crime arising from their failure to apprehend offenders or prevent the crime from occurring* omissions to act (subject to exceptions), * pure economic loss* psychiatric harm
How are novel duty of care situations established?
In novel duty situations there is no previous authority establishing (or negating) the existence of a duty of care, so courts develop the law incrementally, by analogy to established authority. The three criteria which must be met for a duty of care to arise are:* Foreseeability* Proximity* Fair, just and reasonable in all circumstances to impose the duty
What does foreseeability mean in the context of establishing a novel duty of care?
The claimant must be a foreseeable victim i.e. the defendant’s negligence must have created a foreseeable risk of harm to this claimant.Example: a person gets off a bus to look at an accident further down the road and is injured by debris from the accident. This is not within the range of foreseeable claimants so no duty would be established
What does proximity mean in the context of establishing a novel duty of care?
- There must be a relationship of sufficient proximity (i.e. not necessarily physical proximity) between the claimant and the defendant. * This may be best understood by reference to situations in which there is not sufficient proximity e.g. the restrictions on duty of care in cases of pure economic loss and psychiatric harm without physical impact illustrate situations in which there may be a lack of proximity between the parties.
What does ‘fair, just and reasonable’ mean in the context of establishing a novel duty of care?
The court will also consider whether it is fair, just, and reasonable, in all the circumstances, to impose a duty of care. This aspect of the test for duty of care allows the court to consider policy factors e.g. floodgates concerns/can the duty be practically and fairly implemented?
In which 4 situations will an omission to act amount to a breach of duty of care?
Generally, one does not have a legal duty to act e.g. no duty to go to the rescue of someone in danger.Exceptions:* Where there is a special relationship between the parties* If the defendant exercises control over the claimant e.g. police officer arresting the claimant* Defendant has control over a third party or has assumed responsibility over the third party e.g. a parent with control over a young child has a duty to take reasonable care to prevent the child from causing harm to others* Rescue situations
In which 4 situations will an omission to act amount to a breach of duty of care?
Generally, one does not have a legal duty to act e.g. no duty to go to the rescue of someone in danger.Exceptions:* Where there is a special relationship between the parties* If the defendant exercises control over the claimant e.g. police officer arresting the claimant has a duty to take care of the claimant* Defendant has control over a third party or has assumed responsibility over the third party e.g. a parent with control over a young child has a duty to take reasonable care to prevent the child from causing harm to others* Rescue situations (i.e. a limited duty not to make a situation worse)
In what situations would a special relationship exist between parties giving rise to a duty of care which would be breached by an omission to act?
A special relationship between the parties (e.g parent-child) may create a duty on the defendant to take care for the claimant.Such special relationship could also arise when the defendant has assumed a responsibility towards the claimant (often in contractual and employment situations).* a lifeguard having responsibility to rescue swimmers* a decorator painting a house while the pwner is away has a duty to take steps to prevent a theft because, as part of his contract, he assumed a responsibility to look after the house.
If defendant begins to carry out a rescue but then unreasonably abandons it, have they breached a duty of care?
If the defendant’s initial actions prompted others not to stop and assist the claimant, believing that the defendant would complete the rescue, the defendant may have breached a duty to the claimant because the defendant has actually made the claimant’s situation worse.
What is the scope of the duty of care?
- If the harm suffered was not within the scope of the defendant’s duty of care, damages will not be recoverable even if the defendant owed the claimant a duty and acted negligently. * This applies even if the defendant’s actions did, as a matter of fact, cause the claimant’s harm and the harm was reasonably foreseeable. Example: A mother asked a doctor to advise whether she was a carrier for hemophilia. The doctor negligently advised that she was not. The mother conceived a child which did have hemophilia and also autism. Had the mother been correctly advised, she would have terminated the pregnancy and the child would not have been born. The mother sought damages from the doctor for the additional costs of bringing up a child with both disabilities. The doctor would not be liable for the costs associated with autism, as that was outside the scope of the doctor’s duty of care.
What is the standard of care and how is it breached?
The defendant is required to take reasonable care i.e. the standard of care to be expected of a reasonable person in the defendant’s position. If the defendant’s actions fall below this, the duty of care will be breached.* This is and objective and impersonal standard. * The defendant’s own personal characteristics, such as lack of knowledge and experience, are not taken into account e.g. if someone has a psychiatric episode, they will be judged by the ordinary reasonable person test (note, children and professionals will be judged slightly differently). * The Court will look at the activity which the defendant was undertaking and will ask what a reasonable person, undertaking that activity, could be expected to have done (or not done). This will take into account magnitude of risk, practicability of precautions and social utility. A breach may be proven by:* evidence* res ipsa loquitur* criminal convictions involving negligence
How is a breach of duty assessed?
It is assessed after the event. The claimant has suffered harm caused by the defendant’s actions and asserts that the defendant fell below a reasonable standard of care.In assessing whether the defendant’s conduct did fall below a reasonable standard of care, the court will balance two factors:* The magnitude of the risk involved in the activity undertaken by the defendant and* The practicability of taking precautions to avoid that risk.
What does magnitude of risk mean in the context of breach of duty?
In assessing the magnitude of risk involved in the defendant’s activities, the court will ask the following questions:How likely is it that harm will occur* If the activity carried a very low risk of causing harm to the claimant, the claimant may not be able to establish that the defendant fell below a reasonable standard of care and the claim would fail e.g. a claimant outside a stadium injured by a ball hit by a defendant inside the stadium. * This is assessed in light of knowledge available at the time, not with the benefit of hindsight e.g. a doctor failing to take precautions against a risk not foreseeable at the time will not fall below the standard of careHow serious is the potential harm?* The greater the potential harm from the activities, the more precautions the defendant is expected to take in order to meet the standard.* An activity might carry a low risk of harm occurring, but, if harm does occur, it is likely to be very serious. In those circumstances the defendant would be expected to take appropriate precautions e.g. mechanic who was already blind in one eye was injured and had not been provided with protective goggles. The risk of injury was low but for the particular claimant, any eye injury would be very serious. Likely the employer fell below the standard in allowing them to work without goggles.
What does practicability of precautions mean in the context of breach of duty?
- In assessing whether the defendant fell below a reasonable standard of care, the court will balance the practicability of taking precautions against the risk in question.* If cost and practicability of taking precautions far outweighs the risk, the defendant will probably not be in breach for failing to carry out those measures* If they can show they took all precautions commonly taken in this situation, that is evidence that a proper standard of care has been exercised. * The court will also take into consideration social utility of the conduct e.g. when a defendant is acting in an emergency/rescue situation, they may be justified in taking fewer safety precautions than would otherwise be required e.g. risk of damage to property may be justified in using a hose to put out the fire.Example:Claimant slips on a slippery floor in a factory. The defendant took some precautions to alleviate the danger. Closing the factory would be the only precaution to prevent the injury. The court would be satisfied that it was not practicable to close the factory.
A firefighter travelling to the scene of an accident was injured by heavy lifting equipment that slipped. Insufficient fixings had been available to secure the equipment in place. In the circumstances of the emergency the decision is made to set off in any event. Would the firefighter be able to establish a breach of duty?
In a claim against those responsible for failing to secure the equipment adequately, the firefighter may be unable to establish that the defen- dants fell below a reasonable standard of care. The urgency of the emergency may have justified taking fewer safety precautions in transporting the equipment.
How is the standard of reasonable care a particular defendant must achieve determined?
- According to the task the defendant is undertaking. * The standard of reasonable care does not depend on the skill and experience of the particular defendant
Can an under-skilled defendant rely on their lack of skill to argue they are not in breach of duty?
No. Example: the driver of a vehicle must meet the standard of care to be expected of an ordinary competent qualified driver, even if they are a learner. This applies even if a driver did their incompetent best and was incapable of achieving the required standard.
What standard of care is applied to a skilled or professional defendant?
- Defendants who exercise a particular skill or profession are required to meet the level of skill of a reasonably competent member of that profession. * Test: whether the defendant acted in accordance with a responsible body of professional opinion i.e. what an ordinary skilled person in that job would have done e.g. the reasonable doctor, the reasonable accountant etc.* There is an onus on skilled persons to keep abreast of changes and improvements in professional practice and technology* Trainee professionals must exercise the same standard of care as those already proficient in that skill e.g. junior doctors.* The person is judged on the standard of knowledge possessed by the profession at the time the action occurred.
A doctor does not warn their patient of certain risks associated with medical treatment. The treatment is carried out with proper care and skill but, despite this, the risk does occur and causes the patient harm. Could the doctor arque that their decision not to warn the patient of the risks was in accordance with a responsible body of professional opinion and so wasnot in breach of duty?
No. In the context of a doctor warning their patient of the risks of medical treatment, the duty owed by a doctor is to take reasonable care to warn of material risks in treatment so that the patient can make their own decision. What is material depends on what the patient would consider important, not on professional opinion.
What standard of care is expected of children?
- There is no minimum age for liability in tort. * A child defendant is expected to meet the standard of a reasonable child of the same age as the defendant i.e. the foresight and prudence of a normal child their age. The standard of care remains objective. * The court does not look at the level of care that this particular child was capable of.
How is a breach of duty proven in the tort of negligence?
- Evidence* Res Ipsa Loquitur* Criminal convictions involving negligence (evidence of the conviction is admissible as evidence of any civil claim arising from the incident) e.g. criminal conviction for careless driving.The claimant has the burden of proving the defendant was in breach of duty.
What is res ipsa loquitur and what are the 3 conditions for application of the doctrine?
‘The thing speaks for itself‘In some cases, there may be an absence of any explanation of how the incident happened. In cases of this kind the court may be prepared to infer a breach of duty from the circumstances of the accident. The inference of negligence may be rebutted if the defendant is able to show they did exercise reasonable careThe 3 conditions for the doctrine to apply are:* There must be an absence of any explanation for how the incident occurred (if there are other possible explanations, the doctrine will not apply)* The thing which caused the accident must have been under the control of the defendant and* The accident must be such as would not normally happen if proper care had been taken.Example: a stone in a bun bought from a bakery, a man on the street is hit by a barrel of flour that falls out of a bakery’s second story window.
What is causation in negligence?
To succeed in a claim in negligence, the claimant must establish that they have suffered damage. The damage claimed must have been caused by the defendant’s breach of duty. The claimant has the burden of proving this. The claimant must establish:* Causation in fact: That as a matter of fact the claimant’s damage was caused by the defendant’s breach.* Causation in law: That no new act (or event) intervened to break the chain of causation between the defendant’s breach and the claimant’s harm and * That the harm suffered by the claimant was a reasonably foreseeable consequence of the defendant’s breach.
Can carelessness of a defendant result in a claim in negligence if no damage is caused?
NoExample: Employer exposes employees to a dangerous chemical. When the employees become aware of the exposure they are angry and afraid but have not suffered any specific loss. The employer is in breach of the duty of care owed to employees, but since the breach has not caused loss, no claims arise.
Who bears the burden of proving causation of damage?
Claimant
What are the 3 stages in establishing causation?
- Causation in fact: The claimant must prove that, “but for” the defendant’s breach of duty, the claimant would not have suffered the loss. A modified test applies when the claimant’s injury results from a number of different causes acting together * No new intervening acts (legal causation): There must be no new acts which intervene between the defendant’s breach of duty and the claimant’s loss* Damage not too remote (legal causation): The loss suffered by the claimant must be a reasonably foreseeable consequence of the defendant’s breach of duty.
What is causation in fact?
- The first step in proving causation is for the claimant to show that, as a matter of fact, the loss suffered by the claimant was caused by the defendant’s breach of duty on the balance of probabilities. * This is done by applying the ‘but for’ test i.e. can it be said that, “but for the defendant’s breach of duty, the loss would not have happened? e.g. a speeding driver hit a child who jumped onto the road. If the driver did not speed and therefore wouldn’t hit the child, but for causation is established. If the driver did not speed but would have hit the child anyway because there was no time to reach, but for causation is not established. * The ‘but for’ test also applies when there is more than one possible alternative cause of the claimant’s loss.* Note, if a number of different causes acted together to cause the damage, a modified test is used: Material contribution.
A doctor at a hospital negligently fails to attend to a patient complaining of sickness. The patient is sent away and later dies. However, the medical evidence shows that the patient had consumed poison such that they would have died in any event even had the doctor examined them. Is causation established in relation to the doctor’s negligence and the patient’s death?
No, The doctor was clearly in breach of the duty of care owed to the patient. However, that breach did not cause the patient’s loss (the death). It cannot be said that, ‘but for the doctor’s breach, the patient would not have suffered the loss. Therefore, there is no claim in negligence.
A boy climbs a tree and falls to the ground, suffering an injury to his hip. He is then taken to a hospital where he is treated negligently. He suffers a permanent disability to his hip. The disability was caused either by the boy’s own actions or by the hospital’s breach of duty. Who has the burden of proving which cause resulted in the injurt?
The boy has the burden of proving that his loss (the disability) was caused by the hospital’s breach of duty rather than the initial fallfrom the tree.
What is the standard of proof for causation?
The claimant has the burden of proving causation on the balance of probabilities. The claimant must show that it wasmore likely than not that the defendant’s breach (and not some other cause) caused the claimant’s harm.
What is the material contribution test?
This test is used when one injurymay result from a number of different causes acting together (as opposed to when there are two (or more) alternative possible causes of the damage for which the ‘but for’ test is used) The claimant is only required to prove that the defendant’s breach of duty made a material contribution to the claimant’s loss.Example: a negligently caused fire and a naturally occurring fire joined together to burn a claimant’s house. If the negligently caused fire contributed to the house burning down, the claimant can establish causation in fact against the person that caused the fire.
A worker suffers from industrial asthma caused by excessive inhalation of dust. There are two sources of dust: First, dust unavoidably in the atmosphere of the workplace, as to which there is no breach of duty (the ‘innocent’ dust); second, dust entering the atmosphere because of defective equipment, as to which the employer is in breach of duty (the ‘negligent’ dust). What must the claimant prove to establish causation?
Here it is not possible for the claimant to prove which source of dust caused his loss (the asthma), so it would be impossible to show that, but for the ‘negligent’ dust, he would not have suffered the asthma, and the claim would fail. Instead, because the claimant’s loss was caused by two different causes acting together, the claimant is only required to prove that the defendant’s breach of duty made a material contribution to the claimant’s loss.
How are divisible and indivisible injuries dealt with in negligence?
Divisible* Damages can be apportoned between the defendants according to the share of injury which each of them caused. This means that the claimant can only recover a portion of their damages from each defendant, and so must sue them all if the claimant is to recover in full. * This can have important adverse consequences for the claimant if, for example, one of the defendants has ceased to trade and/or does not have effective insurance cover.* Example: industrial deafnessIndivisible:* Claimant is entitled to recover his damages in full from either of the defendants. (Of course, the claimant can only recover his damages once).* By statute, the paying defendant may recover from the other(s) a contribution to the damages payable. * The contribution is to be assessed in such amount as the court considers just and equitable having regard to each defendant’s responsibility for the damage.* Example: claimant is hit by vehicle A and thrown into the path of vehicle B which also hits him. Both drivers were driving negligently. This causes a single indivisible injury of a concussion and multiple fractures.
What is the position in causation where there are successive injuries?
If the claimant suffers one single injury and then later suffers a second separate injury whichimpacts on the first one, the defendant in the second accident is only liable to the extent that their negligence made the claimant’s damage worse than it already was (this is not the same as when two (or more)causes act together to bring about a single injury).Example: Claimant’s car is damaged in an accident caused by the negligence of A, with the result that it needs to be re-sprayed. Before the car can be re-sprayed, it is damaged again in a separate accident caused by the negligence of B also necessitating a re-spray. Here, the cost of the re-spray would not be recoverable from B because B’s negligence has not made the damage any worse.
How is the chain of causation broke?
- When a new act has intervened between the defendant’s original negligence and the claimant’s ultimate injury* If the chain is broken, the defendant is not liable for that further loss.* We ask whether the whole sequence of events is the probable consequence of the defendant’s actions and whether it is reasonably foreseeable that these events may happen* Intervening acts may be caused by third parties, claimants, and natural events
What is required for the intervening act of a third party to break the chain of causation?
- An intervening act by a third party will break the chain of causation only if it was not reasonably foreseeable.* This means the chain of causation is unlikely to be broken by an action which the defendant ought reasonably to have foreseen as a likely consequence of their negligence.
A road accident is caused by D’s negligence, blocking the entrance to a road tunnel. A police officer arrives and directs traffic to drive the wrong way through the tunnel in order to avoid the blockage. As a result of the officer’s directions, a further collision occurs in which the claimant is injured. Is D liable to the claimant for injuries suffered in the later collision?
No * The “but for’ test is satisfied: But for the defendant’s negligence causing the initial road accident blocking the tunnel, the claimant’s injury in the later collision would not have occurred. * Nevertheless, the defendant who caused the initial road accident would not be liable for the later collision caused by the intervention of the police officer, which broke the chain of causation. This is because the police officer’s actions were not reasonably foreseeable
What is required for the intervening act of a claimant to break the chain of causation?
- The claimant must have acted entirely unreasonably. * It is important to distinguish the partial defence of contributory negligence, which allows the claimant’s damages to be reduced if the claimant has failed to take reasonable care for their own safety, contributing to the initial injury occurring. By contrast, if the claimant’s own actions are sufficient to break the chain of causation from the initial injury, the claimant will recover no damages for the subsequent injury.
The claimant suffers a leg injury caused by the defendant’s negligence. The injury renders the claimant’s leg unstable. Although fully aware of this, the claimant later descends a steep staircase with no handrail and falls to the bottom, suffering further injury. The later fall would not have happened had the claimant’s leg not been unstable. Is the defendant liable for the further injury?
The defendant is liable to the claimant for the initial leg injury but would not be liable for the later injury caused by the intervention of the claimant’s own unreasonable decision to descend the stairs.
Can a natural event to break the chain of causation?
A natural event may break the chain of causation and cut off the defendant’s liability for further damage.Example: D’s negligence causes a collision at sea in which there is extensive damage to the claimant’s ship. The ship changes course to head for a harbour to make repairs. En route, the ship encounters a violent storm and suffers further damage. But for the initial collision caused by the defendant’s negligence, the ship would not have encountered the storm. However, the storm may be regarded as a new intervening event which breaks the chain of causation, so that the defendant does not become liable for the further damage caused by the storm.
What is remoteness in the context of causation in negligence?
- Even if it can be said that the claimant’s damage was, as a matter of fact, caused by the defendant’s negligence, the defendant will not be liable if that damage is too remote a consequence of the defendant’s act.* The basic test for remoteness is reasonable foreseeability i.e. Was the claimant’s damage a reasonably foreseeable result of the defendant’s negligence? If the answer is no, the damage was not reasonably foreseeable, and the defendant is not liable for it.* Exceptions: Egg Shell Skull and Similar in Type rules
D’s employees are carrying out repairs in a harbour using welding equipment. They are aware that oil is floating on the water in the harbour. They negligently allow sparks to fall onto the water. The oil ignites and the fire spreads to the claimant’s ship, destroying it. Is causation established?
No, it is accepted that no one could have foreseen that oil floating on water could be ignited by sparks from the welding equipment. Therefore, the damage to the claimant’s ship is too remote a consequence of the defendant’s negligence. The defendant is not liable for that damage.
What is the egg shell skull rule in causation?
- The rule describes the situation in which the claimant suffers from a pre-existing condition (such as a very thin skull) which causes the effect of the defendant’s negligence to be more extensive or severe than might have been reasonably foreseeable. * This is often referred to as the principle that ‘the defendant must take their victim as they find them’Example: Claimant suffers an injury caused by the defendant’s negligence which necessitate a tetanus injection. When the injection is given, the claimant suffers an allergic reaction which greatly increases the harm suffered. Although the severity of the reaction might not have been reasonably foreseeable, the defendant remains liable for the full extent of the claimant’s harm.
What is the ‘similar in type’ rule in causation?
The rule describes a situation in which the claimant suffers the type of harm which would be reasonably foreseeable, but the manner in which it occurs is unforeseeable e.g. if damage to property was foreseeable, the defendant would be liable for damage to extremely expensive property/loss of earnings was foreseeable, the defendant would be liable for extremely high loss of earnings.
The defendant’s employee leaves a paraffin lamp with a naked flame to protect an open manhole cover in the street. The claimant, a child, approaches the manhole. The lamp is knocked into the hole and explodes, causing severe burns to the child. Is the defendant liable for the child’s injuries?
Yes, under the ‘similar in type’ rule. The precise way in which the harm was caused could not have been foreseen. Nevertheless, the defendant is liable for the claimant’s harm because the type of injury (injury by burning) was foreseeable.
A driver injures a pedestrian in an accident caused by the driver’s negligence. The pedestrian’s injuries necessitate a period of absence from work and he suffers a loss of earnings. The pedestrian is a very highly paid investment banker, and his loss of earnings is much higher than that of a person on an average salary, so that the extent of the harm was unforeseeable. Is the driver liable for the high loss of earnings?
Yes, under the ‘similar in type’ rule because the type of injury (loss of earnings resulting from personal injury) was foreseeable. The same principle would apply when the defendant causes damage to a piece of property which was much more valuable than might have been foreseen.
What 4 defences are available to the tort of negligence?
- Contributory negligence (partial defence)* Voluntary assumption of risk (volenti non fit injuria) (complete defence)* Exclusion of liability (subject to statutory controls)* Illegality (complete defence)
What is the defence to negligence of contributory negligence?
It is: 1. a failure by the claimant to take reasonable care for their own safety2. Which contributes to the harm suffered by the claimant.* The onus is on the defendant to show the claimant was at fault and that it contributed to their loss.* The claimant’s failure to take care need not have contributed to the happening of the accident; it only needs to contribute to the damage suffered* It is a partial defence and reduces liability but does not remove it completely - it is not a break in the chain. Damages are reduced to such extent as the court considers just and equitable, having regard to the claimant’s share in responsibility for the damage* Note, it is not a defence to intentional torts e.g. trespass to the person.
Does the defence of contributory negligence apply where two or more people have been negligent and contributed to the loss but the claimant has taken reasonable care?
No, it is not correct to use the term ‘contributory negligence’ todescribe this situation. ‘Contributory negligence’ is only applicable when referring to the claimant’s own failure to take reasonable care. Instead, the rules for contribution between tortfeasors apply.
A passenger travelling in a car fails to wear a seat belt. A collision is caused by the negligence of the defendant, the driver of another vehicle. Claimant is thrown through the windscreen and her injuries are more serious than they would have been had she been wearing a seat belt. Is the defence of contributory negligence available to the defendant?
Yes, Claimant’s failure to wear her seat belt did not contribute to the happening of the accident, but her injuries were more serious than they would have been had she wore the seatbelt.
Claimant is riding a bicycle without wearing a helmet. In an accident caused by the negligence of the defendant, she is thrown from the bike and suffers a broken wrist. Does the defence of contributory negligence apply?
No, Claimant failed to take reasonable care for her own safety by not wearing a helmet. However, this did not contribute to her injury (her wrist).
What are the consequences of the defence of contributory negligence?
- Under the Law Reform (Contributory Negligence) Act 1945, a finding of contributory negligence does not defeat the claim entirely * Damages are to be reduced to such extent as the** court considers just and equitable**, having regard to the claimant’s share in responsibility for the damage.
What is the defence of voluntary assumption of risk to the tort of negligence.
It is a complete defence if the defendant shows that the claimant voluntarily assumed the risk of the defendant’s negligence.For the defence to apply:* The claimant must have had full knowledge of the risk and* The claimant must have freely and voluntarily assumed the risk.Exception: statute prevents the defence of voluntary assumption of risk from applying to passengers in RTAs.Note, courts are reluctant to find the claimant accepted the risk as it defeats the claim entirely and more often find contributory negligence.
What is the defence to negligence of exclusion of liability?
A defendant may seek to exclude liability by displaying a notice to that effect e.g. often used by occupiers. Such exclusions of liability are subject to statutory controls which provide that, when the defendant acts in the course of a business: * Liability for death or personal injury arising from negligence can never be excluded; and * Liability for other damage caused by negligence can only be excluded if the exclusion satisfies a requirement of reasonableness or fairness.
What is the defence to negligence of illegality?
- A complete defence. * A claimant cannot base a claim on their own illegal act. So, the claimant cannot recover damages for harm suffered whilst taking part in criminal activity.Example: C and D steal a car together, D drives negligently and causes an accident injuring C. The defence applies when C seeks to rely on their criminal activity as the basis for their claim. The defence will not apply when the claimant is guilty of some criminal activity, but this is just part of the background circumstances.
Defendant drives her car carelessly and collides with Claimant’s parked vehicle. Claimant’s vehicle was parked safely, but in a location where parking was prohibited. Can the defence of illegality be used by the defendant?
No. The fact that the car was illegally parked should not give rise to the defence of illegality since it is only part of the background circumstances. The claim is not based on the illegal conduct.
What are the elements required to establish a claim in pure economic loss?
- Duty of care* Breach of duty* Causation of damage.Note, there are special principles for duty of care in the case of pure economic loss as the general test is considered inadequate to prevent floodgates being opened/fraudulent claims.
What are the 2 categories of pure economic loss?
Pure economic loss caused by negligent acts * damage to property not belonging to claimant* cost of damage suffered by defective products acquired by the claimant Pure economic loss caused by negligent statements* financial loss which does not flow from damage to the claimant’s person/property (note, exception where a special relationship exists between the parties in the provision of a service)
Is pure economic loss recoverable?
- General rule: pure economic loss is not recoverable in an action in negligence. * Exception: pure economic loss caused by negligent statements may be recoverable when there is a special relationship between defendant and claimant* Note, the ordinary rules of negligence apply to consequential economic loss. In other words, the duty of care owed in respect of the physical injury or damage also extends to economic loss which is consequential on such physical injury or damage.
Are the following examples pure economic loss or consequential economic loss?1) The claimant is injured in an accident caused by the negligence of the defendant. The claimant is absent from work as a result and suffers a loss of wages totalling £3,000. 2) The claimant’s taxi is damaged in an accident caused by the negligence of the defendant. Whilst it is off the road for repairs, the claimant suffers a loss of £10,000 profit that would have been made on hiring out the taxi. 3) A musician’s drum kit is damaged in an accident caused by the defendant, and the musician cannot perform at a booked event. The musician suffers the loss of the drums themselves, valued at £5,000, and the loss of the fee of £2,000 which would have been earned for the booked event.
All of these items of damage are consequential economic loss rather than pure economic loss. They all flow from physical damage caused to the claimant or the claimant’s property and can be recovered as part of the damages in an ordinary negligence action.
A baker is driving a borrowed van to deliver a wedding cake when the defendant crashes ito him through negligent driving. The baker is injured (bumps and bruises) and the van is damaged so he can’t use it until it is repaired and he has no access to another. The cake is ruined. Can the baker claim any damages?
- The baker can claim for his injury and damage to his property i.e. the cake and loss of profit on the ruined cake (these are consequential losses)* He can’t claim for the van as it didn’t belong to him (pure economic loss)* He can’t claim for the loss of profit on the rest of the cakes he was due to deliver but can’t because the van is out of action (pure economic loss)
Can a claimant recover damage to property not belonging to them?
A claimant may suffer loss when property belonging to someone else is damaged. This damage generally is not recoverable. Example: C owns a factory which is supplied with electricity via a cable belonging to an electricity supply company. D negligently damages the supply cable, with the result that C’s factory is without electricity. The factory is forced to close for three days. C suffers increased costs and expenses and loss of profit as a result. C has suffered pure economic loss. This loss is not recoverable from D because D does not owe C a duty of care in respect of this loss.
C manufactured steel alloys 24 hours a day which required continuous power. D’s employees damaged a power cable belonging to a utility company, resulting in a lack of power for 14 hours. There was a danger of damage to the furnace so it was shit down and the products in the process of manufacture were removed, thereby reducing their value. C also suffered loss of profits because of the interruption to manufacturing. Is D liable for C’s losses?
- D is liable for physical damage to the products in the furnace and the loss of profts from these products.* D is not liable for the economic loss as a result of the interruption to manufacturing because it was unconnected with the physical damage.
Can a claimant recover the cost of damage suffered by a defective product they acquired?
- When a claimant acquires a product which is defective, the cost of damage to the product itself is regarded as pure economic loss - which is not recoverable in tort (note, it may be recoverable in contract). * This may arise if the defective product was a gift or if the person with whom the claimant did have a contract for supply of the product may no longer be available as a defendant. * It is important to distinguish the situation where a defective product causes damage to other property e.g. a defective oven overheats and causes a fire that destroys both the oven itself and the furniture in the claimant’s kitchen. The claimant cannot recover from the oven manufacturer the cost of damage to the oven itself but can recover the cost of damage to the kitchen furniture, because that is not pure economic loss.
A retailer sold a product to the claimant, which proved to be defective and suffered extensive damage as a result of the defect. The retailer has since ceased to trade, leaving the claimant unable to pursue a claim in contract. Can the claimant pursue a claim in tort?
No, the manufacturer does not owe the claimant a duty of care in respect of the damage suffered by the defective product. This damage is classified as pure economic loss in respect of which no duty of care is owed.
A caterer purchases an oven to use in his restaurant kitchen. The oven overheats and burns an expensive cut of meat. The caterer loses the cost of the meat itself and also the profit he would have made in serving it in his restau ant. He incurs substantial costs to repair the oven. Also, whilst the oven is undergoing repairs, the caterer suffers a further loss of profit due to being unable to use the oven in his restaurant. The supplier from whom he purchased the oven has ceased to trade, so he sues the manufacturer. He is able to show that the manufacturer’s negligence caused the defect in the oven. Can the caterer recover his losses?
Can recover (as these are not pure economic loss)* The cost of the cut of meat and* the profit which the caterer would have made on it Can’t recover (as these are pure economic loss)* The cost of repairs to the oven and * the **loss of profit due to not being able to use the oven **
Can a claimant recover pure economic loss caused by negligent statements?
- The relevant kind of pure economic loss is likely to be financial loss which does not flow from damage to the claimant’s person or property e.g. failed investment made on the basis of financial advice. * There is generally no remedy in tort. If the claimant did not receive the advice pursuant to a contract (e.g. the claimant relied upon advice provided gratuitously/information was given during a social occassion), pure economic loss is not recoverable.* Note: Silence and inaction can rarely amount to negligent misstaement* Exception: A claimant can recover for this type of loss if there is a special relationship between the parties involving an assumption of responsibility by the defendant and reasonable reliance by the claimant. This exception has been extended to the provision of services* If the advice was provided pursuant to a contract and the defendant has acted in breach, the claimant should be able to recover their financial loss as damages for breach of contract.
What 4 conditions must exist for the special relationship exception to pure economic loss recovery to apply?
A special relationship will arise if the following conditions are satisfied: * The advice is required for a purpose which is made known to the defendant (defendant should have specialist knowledge)* The defendant knows that: (1) the advice will be communicated to the claimant in order to be used for that purpose, and (2) the claimant is likely to rely on the advice without independent enquiry* The claimant must actually have relied on the advice; and * It must have been reasonable for the claimant to do so.i.e. there must be an assumption of responsibility by the defendant and reasonable reliance by the claimant.
A company employs an accountant to prepare a report on its accounts for the purpose of attracting investors. An investor relies on it and invests. The accountant had negligently misstated the company’s solvency and the investor suffered significant losses. If no remedy is available in contract, can the investor recover their losses?
If the investor can show that the accountant knew a third party investor would rely on the report and it was reasonable to do so, a special realtionship would exist between the investor and accountant allowing the investor to sue.
Does the special relationship exception to pure economic loss recovery apply to the provision of services?
Yes, e.g. a solicitor engaged to draft a will undertakes a responsibility towards the beneficiaries under the will, and so may owe them a duty of care.
If a duty of care is established according to the principles governing pure economic loss, what is required to recover damages?
- In the usual way: by showing that the defendant fell below a reasonable standard of care. * The claimant must also show that the defendant’s breach of duty was the cause of the claimant’s loss - applying the usual principles for causation of damage. * Any relevant defences would then also be considered
What is ‘pure psychiatric harm’
Psychiatric harm that is caused without physical impact.It may be caused by: * the shock of being placed in danger by the defendant’s actions (primary), or * by the shock of witnessing harm to others caused by the defendant’s actions (secondary). The harm may be:* A recognised psychiatric condition caused by shock (i.e. grief or fright generally aren’t recoverable); or* A shock-induced physical condition (such as a miscarriage).It is a form of personal injury
What are the elements required to establish a claim in pure psychiatric harm?
- Duty of care* Breach of duty* Causation of damage.Note, there are special principles for duty of care depending on the type of victim in the case of pure psychiatric harm as the general test is considered inadequate to prevent floodgates being opened/fraudulent claims.
What is the difference between pure psychiatric harm and consequential psychiatric harm?
- When a victim suffers a physical injury caused by the defendant’s negligence, they may also suffer from consequential psychiatric harm e.g. a person who suffers a broken leg in a car crash may also suffer from nightmares/a person who suffers cuts and scarring may also suffer from depression as a result. * The ordinary rules of negligence apply to this type of psychiatric harm - the duty of care owed in respect of physical injury also extends to consequential psychiatric harm even if it is not foreseeable as a result of the injury.
A boy standing by a road witnesses a crash, caused by the negligence of a car driver. The boy is so close to the scene that a piece of debris from one of the vehicles strikes him and causes a minor injury to his leg. He is so shocked that he develops post-traumatic stress disorder. Can the boy recover for his injury and the PTSD?
The car driver owes the boy a duty of care (which he has breached, causing the boy injury). The duty extends to both the physical injury and the consequential psychiatric harm. Even if psychiatric harm may not have been foreseeable as a result of such a minor injury, so long as some personal injury was foreseeable, the defendant is liable, since the defendant must take his victim as he finds him.
What are the 2 types of victims recognised under the law of pure psychiatric harm?
- Primary victims2. Secondary victimsThe duty of care rules are different for each of them.
What is the difference between a primary and secondary victim of pure psychiatric harm?
- Primary: Someone who is in the actual area of danger created by the defendant’s negligent act (or who reasonably believes themselves to be) e.g. sitting in a car a negligently driven bus swerves to avoid and developing PTSD.* Secondary: Everyone else who is affected by the defendant’s negligent act, but is outside the actual area of danger e.g. a parent who develops PTSD after watching their child get hit by a negligently driven bus.
What is the duty of care owed to a primary victim of pure psychiatric harm?
A duty of care arises provided:* they were at foreseeable risk of physical injury, even though such physical injury did not in fact occur. * There is no requirement that psychiatric harm be foreseeable as a result of the defendant’s actions. Example: C is involved in a minor road accident which placed C at risk of physical harm. C was not physically injured. However, C does suffer from PTSD. A duty of care is owed, despite the fact that the PTSD may not have been a reasonably foreseeable consequence of the accident.
When is a duty of care owed to a secondary victim of pure psychiatric harm?
All of the following requirements must be satisfied: * It must be reasonably foreseeable that a person of normal fortitude in the position of the claimant would suffer a psychiatric illness in the circumstances* The secondary victim must have had close ties of love and affection with the person endangered by the defendant’s negligence (e.g. mother and child)* The secondary victim must have been present at the accident or its immediate aftermath e.g. A&E hearing and seeing family in terrible state crying in pain (often referred to as proximity to the accident in time and space) and * The secondary victim must have witnessed events with their own unaided senses.
A mother is told by telephone that her child had been run over. She suffers a sudden shock and collapses. However, she is unable to see the child until some hours later. The mother is diagnosed as suffering from post-traumatic stress disorder. Is she owed a duty of care?
No, she does not satisfy the requirements of being in proximity to the accident and witnessing the events with her own unaided senses. So, no duty of care is owed to her.
What constitutes a medically recognised condition for the purposes of claims in pure economic loss?
For both primary and secondary victims the psychiatric harm must amount to a medically recognised psychiatric condition (or shock-induced physical condition) [Note, sudden shock requirement for secondary victims]. * Medically recognised conditions: PTSD, medically diagnosed depressive disorder or anxiety disorder. * Not recognised: simple anxiety, alarm or distress. Note, when there is physical injury to the claimant with consequential psychiatric harm, this limitation does not apply. A victim suffering from physical injuries and consequential effects, such as nightmares and anxiety, should recover damage for those effects in the usual way.
How does the requirement of sudden shock apply to victims of pure psychiatric harm?
Secondary victims* No duty of care is owed unless the harm is caused by a sudden shocking event. * If a secondary victim suffers such harm gradually rather than suddenly (e.g. watching a relative injured by the defendant’s negligence suffer in hospital over a period of time) no duty of care is owed. Primary victims:* Recent case law suggests that the requirement of ‘sudden shock’ does not always apply e.g. negligent treatment during labour causing baby to be born disabled, employee suffering from a psychiatric illness resulting from stress at work over a prolonged period.
If a duty of care is established according to the principles governing pure psychiatric harm, what is required to recover damages?
- In the usual way: by showing that the defendant fell below a reasonable standard of care. * The claimant must also show that the defendant’s breach of duty was the cause of the claimant’s loss - applying the usual principles for causation of damage. * Any relevant defences would then also be considered
Which 3 forms does an employer’s liability in tort for injurt to employees usually take?
- Employer may be in breach of a personal duty of care to an employee and the breach resulted in injury to the employee* Employer may be in breach of a specific statutory duty and the breach resulted in injury to the employee* Employer may be vicariously liable for a tort committed by another employee that injured the employee in question.
What are the elements required to establish a claim in employer’s liability?
- Duty of care (created by employer/employee relationship)* Breach of duty (employee must show employer failed to exercise reasonable care for the safety of the employee)* Causation of damage (employer’s breach must have caused the injury and the damage must not have been too remote)Defences of: voluntary assumption of risk and contributory negligence will be considered.
What is the scope of an employer’s duty of care?
An employer has a duty to take reasonable care for thesafety of employees. Note that this is not an absoluteduty to ensure safetyIt covers:* Safe Plant and Equipment* Safe Place of Work* Competent Fellow Staff* Safe System of Work* Psychiatric Harm from StressThe duty is only owed whist the employee is acting in the course of their employment i.e. doing something reasonably incidental to the employee’s main job. Travelling to and from owrk is usually not in the course of employment unless travelling was part of the nature of the work
An inspector who needs to visit multiple work locations is injured whilst driving from home to the first work site. Does this fall within the scope of the employer’s duty of care?
Yes, as this is within the course of employment
An employee at a factory goes on a tea break and is injured in the break room. Does this fall within the scope of the employer’s duty of care?
Yes, this happened within the course of employment whilst the employee was on the work premises and breaks are part of the normal work day.
What is the employer’s duty to provide safe plant and equipment?
- The employer must take reasonable care to provide safe machinery and equipment, including protective clothing and equipment when required to do the job safely.* This includes ensuring that the equipment is properly maintained e.g. guards must be provided on dangerous machinery to protect the employee from injury and the guards must be inspected regularly to ensure that they are securely in position and are not damaged in any way.Example: a claimant had been employed as a driver and he was required to drive over 400 miles in extremely cold weather in a van with a broken window and a heater that didn’t work. The claimant ultimately suffered severe frostbite. The employer was held liable of the claimant’s injuries for failure to provide safe equipment.
What is the employer’s duty to provide a safe place of work?
- The employer must take reasonable care to provide a safe place of work.* An employer must ensure that its employees are not exposed to any dangers arising out of the place where the employer is expected to work. This covers any place under the control of the employer including access and egress and may also extend to the premises of a third party. * The factor considered here include the nature of the place and the potential risks involved, the work to be carried out, the experience of the employee and the degree of control or supervision the employer can reasonably exercise. * Examples of violations include employees tripping over loose cables across the floor, objects falling onto employees, and assaults against employees if the employer could have put in place measures the prevent this happening and failed to do so, exposure to risks of passive smoking.
What is the employer’s duty to provide competent fellow staff?
The employer must take reasonable care to ensure that fellow staff with whom the employee works are competent (so that they do not pose a danger to the employee). This extends to selection of competent staff (experience and qualifications) and provision of training. The employer may have breached this aspect of the duty of care when:* an employee is injured by a fellow employee who has not been adequately trained to operate the equipment on which they are both working.* they are aware that an employee regularly engages in jokes or horseplay, but fails to take action and this conduct causes injury to a fellow employee
What is the employer’s duty to provide a safe system of work?
- This includes providing adequate supervision to ensure the implementation and enforcement of such system and conducting appropriate risk assessments. * This covers the physical layout of the work station, safety notices, protective clothing, training etc.Example: An employer provides safety gloves required for handling chemicals. The duty extends not only to making the gloves available, but also to ensuring that they are worn. This may require training, reminders, and warnings.
What is the employer’s duty to prevent psychiatric harm from stress?
- The requirement for a safe system of work also covers situations in which an employee suffers psychiatric harm caused by stress at work, as long as it is reasonably foreseeable that the employee is at risk of harm caused by stress. * The employer’s duty then requires taking reasonable steps to respond to that risk e.g. provision of stress management classes to employees in complaints department.
Can an employer delegate their duty of care towards employees?
- No, the duty is personal to the employer and nondelegable. * A task can be delegated, the duty to take reasonable care cannot. If the person to whom a task is delegated fails to take such reasonable care, the employer’s duty is breached.* Not only must employers take reasonable care in their actions directly, but they must also see that reasonable care is taken by others e.g. employer is liable if an independant contractor negligently installs a machine causing injury to an employee [Note, this breach of personal duty is not the same as vicarious liability]
How is the standard of a reasonable employer assessed in terms of breach of duty of care?
Standard: take reasonable care in the way it conducts its operations so as not to subject employees to unnecessary risks.All of the factors considered in relation to breach of duty in relation to negligence generally are relevant here (magnitude of risk and practicablility of taking precautions). Particular regard is given to:* Common practice of other employers in the same field (this is relevant but not determinative)* Employee’s individual circumstances including age, experience and physical condition. The duty is to the employee individually* Date of knowledge of risk e.g. when a claim relates to an industrial disease, the date the industry became aware of the risk is relevant. Can’t reasonably be expected to take precautions against a risk before it is known to exist)* Latent defects in equipment (note Employer’s Liability (Defective Equipment) Act 1969)
An employer knows that an individual employee engaged on engineering work is blind in one eye. Does the employer need to take extra precautions beyond the precautions it takes for all employees in meeting the standard of care required?
Yes, an injury to the employee’s other eye would be particularly serious. The exercise of reasonable care may require the employer to provide safety goggles for this employee, even though goggles would not usually be provided to fully sighted employees.
Are employers liable for latent defects in equipment that causes injury to employees?
Yes, under the Employer’s Liability (Defective Equipment) Act 1969, if the injured employee can establish that there was a defect in the equipment and that the defect was caused by fault on the part of someone (i.e. the third party does not need to be identified), the employee can prove breach of duty on the part of the employer.
What are the causation rules in relation to employer’s liability?
The usual rules applyThe claimant employee needs to show that the employer’s breach of duty was the cause of the harm suffered by establishing:* Causation in fact: ‘But for’ the defendant’s breach of duty, the harm would not have occurred. * No intervening acts: No acts intervened to break the chain of causation between the employer’s breach of duty and the employee’s harm. * Damage not too remote: The harm suffered was reasonably foreseeable and so not too remote
Which defences apply to a breach of an employer’s duty of care?
- Voluntary assumption of risk is a complete defence. The employee must have fully appreciated and voluntarily consented to the actual risk. This is very difficult to establish in an employment situation, because often the employee does not have a free choice.* Contributory negligence: damages may be reduced when the claimant employee failed to take reasonable care for their own safety, and this contributed to their injury.
What is vicarious liability?
The liability of one person for a tort committed by another i.e. liability without fault.It arises from the relationship between the defendant and the person who committed the tort e.g. employee negligently driving an employer’s vehicle in the course of employment causing injury.
What 3 issues must be considered in establishing vicarious liability of an employer?
- Was a tort committed?* By an employee?* In the course of employment?
In which 2 circumstances does vicarious liability of an employer apply?
- A tort committed by an employee against some other person (e.g. a customer of the business)* A tort committed by an employee against a fellow employee.
Can vicarious liability arise if a tort is not committed?
- No, vicarious liability can only arise if that harm amounts to a tort against the claimant. * It is important to analyse the potential tort by asking whether all the elements of the tort are established on the facts, and whether any relevant defences may apply.
Acting during the course of employment, an employee carelessly injures a fellow employee. If the negligent employee has been properly trained and supervised, is the employer vicariously liable?
Yes. There may be no breach of the employer’s personal duty of care in negligence (i.e. training and supervision were given). However, the negligent employee has herself committed the tort of negligence. (Employees owe a duty of care to each other, which she has breached, causing damage). Therefore, the employer may be vicariously liable for the employee’s tort even though not personally at fault.
Which tests are considered to determine whether somone is an employee for the purposes of vicarious liability of employers?
Various tests have developed: * Earlier approaches: The control and integration tests* Modern approach: the economic reality testThese will be relevant if liability is disputed by the employer.
What is the ‘control’ test used to determine whether someone is an employee for the purposes of employer’s vicarious liability?
Did the employer have the right to control the method of doing the work?
What is the ‘integration’ test used to determine whether someone is an employee for the purposes of employer’s vicarious liability?
An employee works as an integral part of the employer’s business, whereas an independent contractor’s work is only accessory to the business.
What is the ‘economic reality’ test used to determine whether someone is an employee for the purposes of employer’s vicarious liability?
Control and integration remain relevant, but they are applied as part of a wider test which looks at the economic reality of the relationship. A range of factors are taken into account, including but not limited to: * Personal service - Does the employee agree, in return for a salary/other remuneration, to carry out the work personally? (if they are not permitted to delegate, they are more likely an employee)* Control - Does the employer have the right to control how the work is done? (Is there an express/implied agreement to follow the employer’s instructions as to how the work is to be performed)* Ownership of tools, etc. - Which party owns and provides work equipment? Is there a requirement to wear the employer’s uniform? * Chance of profit and risk of loss - Which party takes the financial risk from the work being carried out? * Contractual provisions - Are other provisions of the contract consistent with the relationship being one of employer-employee? (Note, labels such as ‘independant contractor’ are not conclusive)
Which is the test used to determine whether a tort was committed in the course of employment?
Test: Was the tort so closely connected with the task the employee was employed to do that it would be fair and just to hold the employer liable? Two questions are used to evaluate this test: * What functions or field of activities have been entrusted by the employer to the employee?* Was there a sufficient connection between the position in which they were employed and their wrongful conduct to make it right for the employer to be held vicariously liable?Note, the courts generally give wide latitude to claimants here. One of the following needs to be established:* the act is incidental to the job the employee was employed to do* the act was considered to be authorised by the employer expressly/impliedly* an authorised act was carried out in a wrongful or unauthorised manner
An employee whose job is to care for children in a residential school carries out tortious abuse of pupils under her care. Is this considered to be in the course of employment?
Yes, the employee’s tort is so closely connected with the task that she was employed to do that her employer will be vicariously liable.
What are the 4 specific situations in which tortious conduct may be regarded in the course of employment?
- Negligence of the employee* Criminal actions of the employee* Disobedience to instructions * Deviations from an authorised journey
Can a negligent act of an employee be in the course of employment?
Yes, an employee may remain in the course of employment even when they carry out the work they were authorised to do negligently. Example: An employee authorised to deliver flammable petrol does so negligently by smoking a cigarette during delivery. A fire ensues. The employer is likely to be vicariously liable for the employee’s negligence.
Can a criminal act of an employee be in the course of employment?
- Yes. It is not a bar to vicarious liability that the tort committed by the employee was also a criminal act. * The test depends on the closeness of connection between the wrongful act and the task which the employee was employed to do. Example: A bouncer employed to eject customers from a nightclub uses excessive force in doing so. A customer is injured, and the employee’s actions amount to a criminal offence. The employee may nevertheless remain within the course of employment, so that the employer is vicariously liable for the tort against the customer.
Can disobedience to instructions of an employee be in the course of employment?
- Yes, depending on the effect of the prohibition. * A prohibition may limit the scope of employment, so breach would put the employee outside the course of employment e.g. employee forbidden from driving company vehicles negligently drives one and causes an accident. Employer is not liable.* In contrast, a prohibition may only limit the manner in which employment is to be carried out. Breach would not put the employee outside the course of employment e.g. employee forbidden from driving company vehicles in excess of speed limit is speeding and causes an accident. Employer is liable.
Can a deviation from an authorised journey by an employee (e.g. when making deliveries) be in the course of employment?
Yes, depending on the degree of deviation from the authorised route.* The extent of the deviation in time or distance may indicate that the employee has started on a separate independent journey for a purpose of their own. In such a case, the employee is unlikely to remain within the course of employment i.e. on a ‘frolic of their own’. * A minor deviation, however, not amounting to a new and separate journey, is unlikely to take the employee outside the course of employment.
An employee who is delivering a light fixture to a customer who lives near the employer’s shop gets drives 3 miles out of the way to visit a friends house. Before he gets there, he negligently hits another car. Is this journey in the course of employment?
Likely not.
Can employers be held to be vicariously liable for anyone other than employees?
Yes, the law has recognised a third category of workers: those who are not technically an employee but who have a relationship ‘akin’ to employment. This relationship is sufficiently analogous to employment to make it fair, just, and reasonable to impose vicarious liability.Vicarious liability will be imposed if:* A relationship akin to employment exists and* There is a close connection between the relationship and the tort committed (i.e. the same test as in the course of employment)Examples: prisoners completing prison work working for the prison authority, priests and religious institutions, foster parents and local government bodies
What factors are considered in determining whether a ‘relationship akin to employment’ exists for the purposes of vicarious liabililty?
Factors considered in finding this type of relationship include: * The tort was committed as a result of an activity undertaken by the tortfeasor on behalf of the defendant * The tortfeasor’s activity is an integral part of the defendant’s business activity (rather than the tortfeasor’s own independent business) and * The defendant created the risk of the tort by assigning the activity to the tortfeasor. The court may also consider whether the defendant is more likely to have the means to compensate the victim than the tortfeasor and the degree of control exercised by the defendant over the tortfeasor.
In which 2 situations relevant to independant contractors might an employer be liable?
An employer is not vicariously liable for the tort of an independant contractor.However, an employer engaging an independent contractor may become personally liable (rather than vicariously liable) for a tort committed by the independent contractor. This may arise when:* The employer is in breach of their own nondelegable duty of care 1. If an employer engages an independent contractor to carry out activities within the scope of the employer’s duty, the employer’s own duty is breached if the contractor does not take reasonable care as the nondelegable duty is to see that reasonable care is taken.2. If an independent contractor is engaged to carry out an extra-hazardous activity, e.g. work on the highway or work inherently likely to cause a nuisance.3. If an independant contractor is engaged to provide lessons for pupils in a school e.g. swimming lessons* The employer is in breach of their own duty to take reasonable care in selecting a competentcontractor e.g. failing to check qualifications and suitability for the task.
What is the aim of damages in tort generally?
To place the claimant, so far as money can do so, in the same position they would have been in had the tort not occurred.
What is the aim of damages for personal injury in tort?
Pecuniary losses* To restore money which the claimant has lost as a result of the injuries (past income, future income and expenses)Nonpecuniary losses* To reflect pain and suffering* To reflect loss of amenity
What is the duty of the claimant in respect of their losses?
Duty to take reasonable steps to mitigate their loss (e.g. by seeking appropriate medical treatment or suitable alternative employment).Note, a failure to mitigate will prevent a claimant from recovering damages for any aggravation of the injury/loss caused by that failure.
What is the difference between special and general damages?
- Special: damages which can be precisely calculated at the time of trial (or settlement), including past loss of earnings and past expenses * General: damages are those which need to be assessed by the court, including future loss of earnings, future expenses, past and future pain and suffering, and loss of amenity.
What are pecuniary losses?
Pecuniary loss refers to financial losses suffered by the claimant as a result of the injury caused by thedefendant. A successful claimant will be entitled to recover damages for pecuniary losses of several types:* Loss of past income* Loss of future income (claimant may be unable to return to work, be limited in their return to work or have a shortened life expectancy)* Expenses (costs of care and costs of necessary medical treatment)
What factors are considered in determining entitlement to loss of past income damages?
Past income is income lost in the period between the injury and trial or settlement, so it is capable of precise calculation (it is a type of special damages).Damages for loss of income are based on the claimant’s net loss of wages. * Tax and national insurance are deducted from the claimant’s gross pay, leaving a net figure. * The calculation also takes account of any sick pay provided by the claimant’s employer, which reduces the claimant’s loss of wages. Example: C’s average net salary is £2,500/month. They were unable to work for 9 months and received £2,500 in sick pay during the period they were off. Damage = (2500 x 9) - 2500
What factors are considered in determining entitlement to loss of future income damages?
This is income lost after the date of trial or settlement as a result of the injury e.g. claimant can’t return to work at all, can return to some work but at a lower rate of payThese damages are general damages (not capable of precise calculation) and are awarded as one lump sum, assessed at the time of trial (or settlement). The calculation will depend on whether the claimant:* is unable to return to work at all* is limited in their return to work* has a shortened life expectancy
How is loss of future earnings calculated when the claimant is unable to return to work?
It will be assessed by the court based on the evidence provided. * This calculation is made by taking the claimant’s pre-accident annual income (called the multiplicand) and multiplying it by the number of years of lost income (called the multiplier). * Adjustments are made to reflect the fact the claimant is getting the money in a lump sum in advance and the fact that, under the contingencies of life, there is a chance the claimant could have lost their job at some point in the future regardless of the injury.
How is loss of future earnings calculated when the claimant’s return to work is limited?
If the claimant can return to work, but only in a different job at a lower rate of pay:* This calculation is made by taking the difference between the claimant’s original salary before the accident and the new reduced salary (called the multiplicand) and multiplying it by the number of years of lost income (called the multiplier). * Adjustments are made to reflect the fact the claimant is getting the money in a lump sum in advance and the fact that, under the contingencies of life, there is a chance the claimant could have lost their job at some point in the future regardless of the injury.
How is loss of future earnings calculated when the claimant has a shortened life expectancy?
- The claimant can recover damages for the income they would have earned during those ‘lost years’ e.g. a claimant age 20 may have been expected to work until age 60 but is now expected only to survive until age 40. * When this figure is calculated, a reduction is made to reflect the amount which the claimant would have spent on their own living expenses during those lost years.
How are expenses damages calculated for personal injury?
Expenses include costs of medical treatment, costs of care, costs of necessary equipment and adaptations to the home, and additional travel costs. * Past expenses incurred between injury and trial or settlement are capable of precise calculation. * Future expenses will be assessed by the court, based on the evidence provided
What rules apply to the calculation of damages with respect to cost of care expenses in personal injury cases?
This includes nursing or help with household tasks. * The claimant can recover the reasonable costs paid for such care. * In some cases, care may be provided gratuitously by the claimant’s relatives, but an award in respect of the claimant’s need for such care can still be made. * Note that the person providing care does not have a separate claim against the tortfeasor.
What rule applies to the calculation of damages with respect to cost of medical treatment in personal injury cases?
When a claimant is entitled to medical treatment free of charge provided by the NHS but chooses instead to pay for private treatment, the defendant is barred by statute from arguing that it was not reasonable to incur the costs of private treatment. In other words, a claimant is not obliged to mitigate their loss by accepting treatment provided by the NHS.
What are nonpecuniary losses and how are they limited?
Nonpecuniary loss refers to nonmonetary losses, such as the pain and suffering of the injury and the loss of amenity which it causes.* Past and future damages are available and are assessed by the court (i.e. general damages), having regard to published guidelines which are based on awards in previous reported cases (except that statute fixes the amount of damages for some whiplash injuries). * When an injured claimant is unconscious for a period of time and does not experience pain and suffering, no damages for pain and suffering will be awarded for that period. However, such a claimant still suffers the loss of amenity caused by the injury, so damages are still awarded to compensate the unconscious claimant for this loss of amenity.
What does ‘loss of amenity’ mean in the context of damages?
Loss of amenity refers to the effects of the injury on the claimant’s ability to enjoy life (such as an inability to continue with pre-accident sporting activities or hobbies).
How is damage to property calculated?
- If property is destroyed, damages will be based on the cost of replacement. * If property is damaged rather than destroyed, damages will be based on the diminution in value, which is often equivalent to the costs of repair. * In both cases the claimant may also recover consequential costs, such as temporary hire of a replacement.
What 2 types of claim arise on death?
- If a claimant dies, their existing cause of action may continue for the benefit of their estate2. If the victim of an accident dies, a new cause of action may arise for the benefit of their dependants, and for bereavement.
What types of damages are considered for claims arising on death?
- Damages for personal Injury of the deceased * Damages for dependants * Damages for bereavement* Damages for funeral expenses
Does a claim in defamation survive the death of the claimant?
No.
Do causes of action against a deceased defendant survive the death of the defendant?
Yes, the claim may be brought against their estate.
Does a deceased’s cause of action survive their death?
Yes, if a claimant dies, any existing cause of action in tort survives for the benefit of their estate. Note, the cause of death is irrelevant* If a claimant suffers personal injury and then dies before completing a claim, the claim will continue. The estate will be able to recover damages for pain and suffering and loss of amenity up to death and expenses and loss of earnings up to death. * No damages are recoverable for the period after death. * There is no claim for the death itself. So if a claimant is killed instantly, with no pain, no damage to property, and no loss of earnings, there is no actionable damage and so no claim to survive their death. * Any contributory negligence by the deceased will be taken into account and damages may be reduced in the same way as for a living claimant.
A was struck by B’s car and was seriously injured. A brought a personal injury claim against B but died before trial. Do any claims survive A’s death?
Yes:* A’s claim for personal injury survives his death and continues for the benefit of his estate* There is a new cause of action for A’s spouse and children for losses of dependancy benefits and for bereavement damages (spouse only) against B.Note, if A was killed instantly, only the new cause of action would existIf A’s death was not caused by the accident, no new cause of action would exist.
When do damages for dependants and for bereavement arise?
- If the claimant dies as a result of the defendant’s tort, a new cause of action may arise in addition to the claim for the benefit of the decedent’s estate. * Note that these claims can be made only if the deceased would have been able to bring a claim had they survived. * Any contributory negligence on the part of the deceased that would have reduced their own recovery will also result in a reduction of the damages for dependants and for bereavement.
Who is entitled to damages for bereavement?
Entitled* The spouse or civil partner of the deceased* The cohabiting partner of the deceased (defined as a person who was living with the deceased as spouse for at least two years immediately prior to death)* The parents - if the deceased was a minor (under 18) and never married. Not entitled* parents of a child aged over 18 * children for the death of a parent. The amount recoverable for bereavement damages is fixed by statute.
Who is entitled to damages for loss of dependency?
Claimant must satisfy both of the following conditions: * They must be an eligible dependant (spouse, civil partner, co-habitating partner, parent, children etc.)* They must have been financially dependent on the deceased.
When are damages for funeral expenses payable?
If the defendant’s tort caused the victim’s death
A father has two children. One is aged 15. This child lives at home, is in full time education, and is financially dependent on his father. The other is aged 20. She lives in a flat of her own, has a full time job, and is not financially dependent on her father. He was killed in a car accident by a negligent driver. Are the children entitled to damages for loss of dependency?
Only the child who was financially dependent on him is entitled to make a claim for loss of dependency.
Who is a ‘defendant’ under: * Occupiers’ Liability Act 1957* Occupiers’ Liability Act 1984* Defective Premises Act 1973
- Occupiers’ Liability Act 1957: Occupier of the premises* Occupiers’ Liability Act 1984: Occupier of the premises* Defective Premises Act 1973: Builders and Landlords
Who is a ‘claimant’ under: * Occupiers’ Liability Act 1957* Occupiers’ Liability Act 1984* Defective Premises Act 1973
- Occupiers’ Liability Act 1957: Any lawful visitor* Occupiers’ Liability Act 1984: Any trespasser and non-visitor* Defective Premises Act 1973: Any person who has an interest in the dwelling
What constitutes ‘premises’ under: * Occupiers’ Liability Act 1957* Occupiers’ Liability Act 1984* Defective Premises Act 1973
- Occupiers’ Liability Act 1957: Land, buildings and other structures on the land* Occupiers’ Liability Act 1984: Land, buildings and other structures on the land* Defective Premises Act 1973: Premises used as dwellings
What duty is imposed under: * Occupiers’ Liability Act 1957* Occupiers’ Liability Act 1984* Defective Premises Act 1973
- Occupiers’ Liability Act 1957: To exercise reasonable care to keep visitors reasonably safe on the premises * Occupiers’ Liability Act 1984: To exercise reasonable care under the circumstances to prevent injury to non-visitors* Defective Premises Act 1973: Builders - to provide a dwelling fit for habitation, Landlords - to exercise reasonable care to keep premises reasonably safe under the circumstances
Under the Occupiers’ Liability Act 1957, what is:* a defendant * a claimant* premises* the duty imposed
- Defendant: Occupier of the premises* Claimant: Any lawful visitor* Premises: Land, buildings, and other structures on land* The duty imposed: To exercise reasonable care to keep visitors reasonably safe on the premises
Under the Occupiers’ Liability Act 1984, what is:* a defendant * a claimant* premises* the duty imposed
- Defendant: Occupier of the premises* Claimant: Any trespasser and non-visitors * Premises: Land, buildings, and other structures on land* The duty imposed: To exercise reasonable care under the circumstances to prevent injury to non-visitors
Under the Defective Premises Act 1972, what is:* a defendant * a claimant* premises* the duty imposed
- Defendant: Builders and landlords* Claimant: Any person who has an interest in dwelling* Premises: Premises used as dwellings* The duty imposed: Builders - to provide a dwelling fit for habitation, Landlords - to exercise reasonable care to keep premises reasonably safe under the circumstances
What is the relationship between occupiers’ liability and negligence?
Occupiers’ liabilty is a specialised application of negligence.
Can activities on the premises trigger occupiers’ liability?
No. * The Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984 both refer to “danger due to the state of the premises or things done or omitted to be done on them”. * However, the Acts have been interpreted as applying only to the condition of the premises, and not to activities carried out on the premises (Note, a claimant who was injured by an activity carried out on the premises could have an ordinary negligence claim). Example: cutting down trees on your property would not fall under the statutes because it is an activity. Leaving tree trunks in the middle of your property’s driveway would fall under the statutes because this involves a condition of the property
What is a ‘visitor’ in the context of occupiers’ liability?
Visitor (Occupiers’ Liability Act 1957 applies)* A visitor is someone whom the occupier has invited or permitted to be on their premises (or whom the statute deems to have been permitted e.g. police/emergency workers) e.g. a guest invited to visit a house for dinner, a customer entering a shop, or a spectator purchasing a ticket and entering a sports ground. * The occupier may limit the permission given (e.g. length of stay, time of visit, access restrictions to certain parts of premises). A person who entered the premises as a lawful visitor but then exceeded the scope of that permission would become a trespasser. * All persons have implied permission to enter premises and state their purpose unless permission has been revoked for that specific person e.g. canvasser for political partyNon-visitor (Occupiers’ Liability Act 1984 applies)* The class of ‘non-visitors’ includes anyone who is not invited or permitted by the occupier. The most common example of a non-visitor is a person who enters as a trespasser.
A customer enters a department store to do some shopping. She is a lawful visitor. She then goes beyond the public area of the store by entering a door marked ‘private, no entry’. Which occupiers’ liability statute applies?
- Whilst the customer is within the permitted area, the duty of care owed to her is governed by the 1957 Act. * Once she leaves that area and becomes a trespasser, the duty owed to her is governed by the Occupiers’ Liability Act 1984.
Who is an Occupier under the occupiers’ liability statutes?
- The occupier of premises is the person who has control over the premises. * A person can be the occupier of premises without being the owner if they have sufficient control e.g. a builder who takes over control of premises to carry out works may become an occupier. * The owner of premises who has not retained control over them will not be an occupier under the Act e.g. a landlord who owns premises but lets them to a tenant. * There can be more than one occupier and actual physical possession isn’t necessary for an owner to have a sufficient degree of control e.g. where parts of a premises are excluded from a lease and landlord and tenant are both occupiers
In what situation would a landlord and tenant be occupier of premises at the same time?
- If parts of the premises have been excluded from the lease or tenancy, the landlord may retain control and so be the occupier (for example, a common staircase in a block of flats) e.g. owners of a pub grant a manager a licence to use the first floor as private accommodation. A guest falls down poorly maintained stairs and is killed. If both the owner and manager had control of the stairs, either or both could be helf liable.* Normally, the landlord parts with control over the premises to the tenant, so the landlord would not be the occupier; the tenant would be the occupier.
What are ‘premises’ for the purposes of occupiers’ liability statutes?
- Premises means land, including any buildings on the land e.g. a garden would be premises under the Act, as would a house. * The term applies to any fixed or moveable structure (for example, temporary scaffolding or ladders). * It has also been extended to include ships and trains - very broadly defined e.g. a derelict boat left on a council estate was considered within the definition
Are there different categories of lawful visitors in occupiers’ liability?
No. * Prior to the 1957 Act, the law drew a distinction between different categories of lawful visitors, and different duties were owed to each.* The 1957 Act removed these distinctions and introduced a common duty to be applied to all lawful visitors: “An occupier of premises owes the same duty, the ‘common duty of care’, to all his visitors”
What is the ‘common duty’ of care under occupiers’ liability?
The 1957 Act removed previous distinctions in categories of lawful visitors and introduced a common duty to be applied to all lawful visitors: “An occupier of premises owes the same duty, the ‘common duty of care’, to all his visitors” Note: this is a statutory duty, not a common law duty. * The duty is to take such care as is reasonable under the circumstances to see that the visitor will be reasonably safe in using the premises for such purposes as they have been invited or permitted to be there. The occupier’s duty of care also extends to damage to the visitor’s property* Reasonable care varies for children and visitors entering premises in exercise of their calling. * What is reasonable depends on all of the circumstances and warnings and independant contractors are specifically dealt with under the act.
Steps to a house have moss on them and are sometimes slippery. What does the duty of care of the occupier depend on?
Magnitude of risk* How likely it is that a visitor may fall (based on how slippery they are, how noticeable the moss is etc.* How serious a visitor’s injury is likely to be (based on how steep the steps are and whether there is vegetation surrounding the steps)Balanced againstPracticability of taking precautions* Removing the moss, installing handrails etc.
What is the standard of care required under the Occupiers’ Liability Act 1957?
Standard of care: Reasonable care. * Court will have regard to the magnitude of the risk of harm and the practicability of taking precautions, taking into account all of the circumstances. * What is reasonable under the circumstances includes the degree of care that visitors themselves can be expected to take. * The visitor must be reasonably safe, not the premises. The occupier is therefore not required to remove every danger. Barriers and warnings may be appropriate. * The Act specifically covers children (i.e. they will be less careful than adults and more precautions will be required) and visitors entering premises in exercise of their calling (i.e. appreciate and guard against any special risks incidental to that calling)
What is the standard of care required for children under the Occupiers’ Liability Act 1957?
- The Act provides that an occupier should be prepared for children to be less careful than adults. So, to meet the standard of care, an occupier may be required to take more precautions to avoid harm to children than would be required for an adult visitor.* Example: children may not appreciate the dangers of poisonous berries, electricity cables, lights, moving machinery etc.* Note, the occupier is entitled to take into account what a prudent parent would do in the situation e.g. a 2 year old child wandered off from his mother at a holiday park and drowned in a pond that the parents had been warned about (verbally and on a map). Occupiers were not liable because the risk and danger of a pond to a child should be obvious to a parent or guardian.
What is the standard of care required for visitors entering premises in exercise of their calling under the Occupiers’ Liability Act 1957?
The Act provides that an occupier may expect persons entering premises in the exercise of their calling to appreciate and guard against any special risks incidental to that calling e.g. an electrician should be aware of dangers posed by electrical wiring/chimney sweep should know to switch off a boiler before starting to clean the flux to avoid exposure to toxic fumes
How does an occupier discharge their duty under the Occupiers’ Liability Act 1957?
Whether an occupier has discharged their duty by taking reasonable care depends on the court’s evaluation of all the circumstances.The 1957 Act specifically covers two relevant circumstances: * Warnings and * Independant Contractors
When will a warning discharg an occupier’s duty under the Occupiers’ Liability Act 1957?
When damage is caused to a visitor by a danger of which they had been warned, the warning is not to be treated, without more, as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.* Example: A warning of a slippery floor placed at the only exit to premises, which the visitor cannot avoid, may not be sufficient to discharge the occupier’s duty. * Example: a notice warning of a slippery floor which specifies an alternative route, so enabling the visitor to avoid the danger, may be sufficient.
If an occupier engages an independent contractor to carry out work of construction, maintenance, or repair on the premises and a lawful visitor suffers damage caused by the faulty execution of such work, how does the occupier discharge its liability?
The 1957 Act provides that the occupier may discharge the duty to take reasonable care by engaging an independent contractor to do the work, provided all of the following conditions are met: * The occupier acted reasonably in entrusting the work to an independent contractor; and * The occupier took such steps as they reasonably ought (if any) to be satisfied that: (1) the contractor was competent, and (2) the work had been properly done (the more technical and complex the work, the less the occupier may be expected to check it personally).Generally, occupiers will not be liable for the negligence of independant contractors that cause harm to visitors on the premises
A shopkeeper contracted with an electrician (after confirming he had appropriate qualifications and experience) to replace lighting in display cases in her shop. She had a safety inspector approve the work after it was fitted. The next day, a customer touched the display and suffered a severe electric shock because the electrician failed to ground the wire property. Is the shopkeeper liable for the injury of the customer?
No, they will not be liable as they checked the qualifications and experience and had a safetly inspector approve the work.
How is causation of damage established for the purposes of occupiers’ liability (under both the 1957 and 1984 Acts)?
The ordinary rules of negligence apply* Causation in fact: The claimant must prove that, “but for” the defendant’s breach of duty, the claimant would not have suffered the loss. A modified test applies when the claimant’s injury results from a number of different causes acting together * No new intervening acts (legal causation): There must be no new acts which intervene between the defendant’s breach of duty and the claimant’s loss* Damage not too remote (legal causation): The loss suffered by the claimant must be a reasonably foreseeable consequence of the defendant’s breach of duty.
What 3 defences are available to occupiers’ liability under the 1957 Act?
- Exclusion of liability (subject to statutory controls)* Voluntary assumption of risk (complete)* Contributory negligence (partial)
What is the defence of exclusion of liability to occupiers’ liability under the 1957 Act?
An occupier owes the common duty of care to their visitors - except in so far as the occupier is free to, and does, exclude such duty by giving effective notice (contractual or noncontractual). When the occupier acts in the course of a business, there are statutory controls on the exclusion of liability. * For death or personal injury, a business occupier cannot exclude liability * For any other damage, liability can only be excluded if the exclusion is reasonable (in the case of business visitors) or fair (in the case of non-business visitors) e.g. boat tour operator may not exclude liability for personal injury of passengers but may inform them that no liability is accepted for damage to or loss of property.When the occupier is not acting in the course of a business, these statutory controls do not apply, so such occupier is free to exclude liability.
What constitutes effective notice for the purposes of the exclusion of liability defence for occupiers’ liability under the 1957 Act?
If the occupier is to rely on the exclusion (contractual or noncontractual) subject to statutory controls: * It must be clear that the wording of the exclusion covers the damage in question; and * The exclusion must have been adequately brought to the attention of the claimant.Bringing the exclusion to the attention of the claimant requires the following: * Contractual Exclusion: the term excluding liability must have been incorporated into the contract by being brought to the attention of the visitor before the contract was made (e.g. telling a visitor to the stately home about the exclusion of liability for property damage before the ticket was purchased). * Noncontractual Exclusion: adequate steps must be taken to bring it to the attention of the visitor before they encounter the risk for which liability is excluded. It is not necessary to show that the visitor was actually aware of the notice. It is sufficient that reasonable steps were taken to bring it to the visitor’s attention (e.g. a notice displayed at the main entrance to premises would not be effective against a visitor who entered by a different entrance).
What is the difference between a warning and an exclusion of liability under the Occupiers’ Liability Act 1957?
- An occupier relying on a warning is arguing that the duty was fulfilled. * An occupier relying on an exclusion notice is setting up a defence to the claim.
What is a trespasser under the Occupiers’ Liability Act 1984?
Someone who comes onto premises without the permission of the occupier. It also includes someone who enters the premises with permission but then exceeds the extent of such permission.
When is a duty owed under the Occupiers’ Liability Act 1984?
A duty is owed by an occupier to a trespasser only if all of the following conditions are satisfied: * The occupier is aware of the danger (or ought reasonably to be aware)* The occupier is aware that the trespasser may come into the vicinity of the danger (or ought reasonably to be aware) and * The danger is one against which it would, in all the circumstances, be reasonable to expect the occupier to offer protection.
The occupier of a country park with a shallow lake knows that the lake poses a danger to swimmers. The occupier has sought to prevent swimming but is aware that people do nevertheless enter the lake. In entering the lake in defiance of this prohibition, the swimmers become trespassers. A swimmer is very seriously injured when he dives into the shallow lake. Does the occupier owe a duty of care to the swimmer?
The court may find that the obvious risk of diving into a shallow lake is not one against which it is reasonable to expect the occupier to offer protection, because the trespasser has taken it upon himself to engage in the risky activity. Note also that an alternative ground on which such a claim might fail would be the argument that the claimant’s injury did not arise from the state of the premises but from the claimant’s own activities in the way the premises was used.
A land occupier living near a cricket field knows trespassers regularly enter his premises to retrieve stray balls. There are some electrified wires hidden in the bushes near the boundary line. Does the occupier owe a duty of care to the trespassers?
Yes, this is the type of risk the occupier could reasonably be expected to offer some protection against, therefore, a duty of care may arise.
What duty of care is owed by the occupier under the 1984 Act?
- If a duty of care is owed (i.e. 3 conditions required are satisfied), the duty is to take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury by reason of the danger concerned. * The duty does not cover damage to property.Example: a trespasser trips over something on an occupiers’ premises, falls and breaks their arm and smashes their phone. If the occupier is proved negligent, they can claim for the arm but not for the phone.
How is the duty of care of the occupier discharged under the 1984 Act?
- The duty is to take care as is reasonable in all the circumstances to see that the trespasser does not suffer injury by reason of the danger concerned. * In determining whether the occupier has discharged that duty, the court will consider the magnitude of risk of harm to the trespasser and the precautions which it would be reasonable to expect the occupier to take. * The 1984 Act specifically mentions that the occupier may be able to discharge their duty by taking such steps as are reasonable to give a warning of the danger or to discourage the trespasser from incurring the risk.
How does the position on warnings for the discharge of the duty of care differ under the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984?
- To be effective under the 1957 Act, the warning must enable the visitor to use the premises in safety. * The warning requirement for a trespasser is less onerous, requiring only that they are warned of the danger or discouraged from incurring the risk.Example: A warning sign of slippery steps at the only entrance to a premises would discharge the duty to trespassers. The warning would need to specify an alternative route to enable the visitor to avoid the danger to discharge the duty to visitors.
What 2 defences are available to occupiers’ liability under the 1984 Act?
- Voluntary assumption of risk (complete)* Contributory negligence (partial)Note, the 1984 Act does not make any reference to the possibility of excluding liability. Therefore, it is unclear whether the duty of care owed by an occupier to a trespasser can be excluded.
For liability based on negligence, what is:* a defendant* a claimant* liability* damages
- Defendant: Manufacturers, wholesalers, retailers, assemblers, repairers* Claimant: Any foreseeable claimant* Liability: Failure to exercise reasonable care in supplying defective product* Damages: Physical injury or property damage (no recovery for solely economic loss)
For liability based on the Consumer Protection Act 1987, what is:* a defendant* a claimant* liability* damages
- Defendant: Producers, importers or ‘own branders’, and (in limited circumstances) suppliers* Claimant: Anyone injured by a defective product* Liability: Supplying defective product* Damages: Physical injury or damage to property (provided the property damage exceeds £275)
What is the difference between a defendant under:* Liability based in negligence* Liability based on the Consumer Protection Act 1987
- Liability based in negligence:Manufacturers, wholesalers, retailers, assemblers, repairers* Liability based on the Consumer Protection Act 1987: Producers, importers or ‘own branders’, and (in limited circumstances) suppliers
What is the difference between damages under:* negligence* the Consumer Protection Act 1987
- Liability based in negligence: Physical injury or property damage (no recovery for solely economic loss)* Liability based on the Consumer Protection Act 1987: Physical injury or damage to property (provided the property damage exceeds £275)
What is the difference between a claimant under:* Liability based in negligence* Liability based on the Consumer Protection Act 1987
- Liability based in negligence: Any foreseeable claimant* Liability based on the Consumer Protection Act 1987: Anyone injured by a defective product
What is the difference in liability:* based in negligence* based on the Consumer Protection Act 1987
- Liability based in negligence: Failure to exercise reasonable care in supplying defective product* Liability based on the Consumer Protection Act 1987: Supplying defective product
What are the benefits of bringing a breach of contract claim instead of a claim in tort in respect of defective products?
Liability for breach of contract:* is strict (i.e. it does not depend on proving that the supplier of the goods was at fault). * can include damage to the goods themselves. This loss is not recoverable in a claim in Tort because it is classed as pure economic loss Therefore, when a claim in contract is possible, it is likely to be a better alternative than claiming in tort.
What is the benefit of bringing a claim in tort in respect of defective products instead of a breach of contract claim?
The law of Tort can provide a remedy even when no claim in contract would be available.For a claim in contract to be possible, there must be privity of contract (subject to limited statutory exceptions permitting a third party, without privity, to enforce a contract). * Generally, a party who did not purchase goods would not have a remedy in contract against the supplier. * A person who purchases goods from a supplier would not, in general, have a remedy in contract against the manufacturer.Example: A woman buys a tool from a supplier. She lends the tool to her father. The tool is defective and causes an injury to the father whilst he is using it. The father would not have a claim in contract against the supplier. However, he might have a claim in tort against the manufacturer (or, in some limited circumstances, against the supplier).
What is required for a claimant injured by a defective product to bring a claim in negligence?
The usual elements of a claim in negligence must be established:* Duty of care* Breach of duty* Causation of damage
What is the duty of care owed by a manufacturer of defective goods under negligence?
The manufacturer of a product owes a duty of care to the end consumer of that product. This duty covers personal injury caused by the defective product (including consequential economic loss), damage it causes to other property but not damage caused to the product itselfThe duty arises when the following conditions are satisfied: * The manufacturer puts the product into circulation in the form in which it is intended to reach the end consumer* There is no reasonable expectation of an intermediate examination of the product between leaving the manufacturer and reaching the consumer (i.e. the manufacturer will only escape this duty when there is a reasonable probability of an intermediate examination taking place, in which case, the retailer will owe a duty). Example: a manufacturer assembled, boxed and shipped a blender to the retailer. There is no expectation that the retailer will open the box and inspect the blender before resale to the consumer so the manufacturer owes a duty to the consumer.
Who is a consumer for the purposes of defective products liability in the tort of negligence?
- Anyone whom the manufacturer could reasonably foresee as likely to be affected by a defect in the product. * This can extend to persons using the product and also to others coming into contact with the product. Example: a homeowner owns a defective blender and their child is injured by it. The child would come within the scope of the manufacturer’s duty of care
Who is a manufacturer for the purposes of defective products liability in the tort of negligence?
- The person who manufactured the product. * This class of defendants also extends to those who install or repair products. Note, retailers generally will not owe a duty of care in negligence for defective products unless they reasonably ought to have inspected the product for defects before supplying it
When will a retailer owe a duty of care for defective products liability in the tort of negligence?
- A retailer will a duty if they reasonably ought to have inspected the product for defects before supplying it.* This determination will depend on the facts of the particular case. Thus, there may be no duty to inspect goods which are packaged in such a way that they cannot be examined (e.g. a blender in original packaging), but there may be a duty to examine goods for obvious defects when it is practicable to do so.* Generally, a retailer who merely supplies the product to another does not come under a duty of care in negligence (note, they may have liabilities in contract).
What types of damage is covered by defective products liability in the tort of negligence?
Personal injury caused by the product. * This includes any economic loss consequential to such injury, such as loss of wages or costs of medical treatmentDamage which the defective product causes to other property* This does not extend to damage caused to the defective product itself. Such damage is regarded as pure economic loss and is not recoverable. Example: A defective oven installed in the claimant’s kitchen overheats and causes a fire. The fire destroys the kitchen furniture and also severely damages the oven itself. The manufacturer’s duty of care covers the damage caused by the oven to the kitchen furniture. However, it does not cover the damage suffered by the oven itself.
How is a breach of a manufacturer’s duty for defective products under the tort of negligence established?
The usual rules for breach of duty apply i.e. showing that the defendant fell below the standard of care to be expected of a reasonable manufacturer of goods of the kind in question. * This may have occurred during the manufacturing process or during the design of the product. * Because the manufacturing/design process is very often under the control of the defendant, it may be difficult for the claimant to obtain evidence of breach. The court may be prepared to infer a breach of duty from the existence of the defect itself (on the basis that the defect in the goods could only arise because of some fault in the manufacturing process ‘res ipsa loquitur’). Note, these difficulties led to the introduction of the statutory regime.
A blender shatters on first use. Can the owner bring a claim in negligence against the manufacturer for the defective product?
Likely, yes, because a blender wouldn’t likely shatter on first use without a defect and because the manufacturer boded and shipped it, the homeowner can rely on an inference that the manufacturer breached its duty of care in manufacturing the blender. Note: if the blender jar had been made by a third party and the manufacturer simply put it in the box, the manufacturer had no reason to know the third party was making defective blender jars so the homeowner would have a harder time getting the court to infer a duty on the manufacturer.
A blender injured a homeowner after slipping off the counter while turned on. Can the homeowner bring a claim in negligence against the manufacturer for the defective product?
Likely not. A homeowner may argue that the design of the product was defective because there were no non-slip pads on its base to keep it from sliding off. Even if they could show that other blenders had pads, it would be hard to show the manufacturer breached its duty of care in making the blender without them.
How is causation of damage established for the purposes of liability for defective products in the tort of negligence?
The ordinary rules of negligence apply* Causation in fact: The claimant must prove that, “but for” the defendant’s breach of duty, the claimant would not have suffered the loss. A modified test applies when the claimant’s injury results from a number of different causes acting together * No new intervening acts (legal causation): There must be no new acts which intervene between the defendant’s breach of duty and the claimant’s loss* Damage not too remote (legal causation): The loss suffered by the claimant must be a reasonably foreseeable consequence of the defendant’s breach of duty.
Which defences apply to liability for defective products in the tort of negligence?
The usual defences to a claim in negligence are available e.g., a claimant who continues to use aproduct which is obviously defective may be met with the defence of contributory negligence.
What 4 elements must be established for the CPA 1987 to apply?
- Product contained a defect* Claimant suffered damage* Damage was caused by the defect (usual causation rules apply)* Defendant is a producer, own brander, or importer of the product
What type of liability is imposed by the CPA 1987?
Strict liability for damage caused by defective products. * It is not necessary to prove that the defect arose because of fault of the defendant * Note, liability is not absolute and the claimant must prove there was a defect
Who is a claimant for the purposes of the CPA 1987?
- Anyone who suffers damage caused by a defect in a product is a potential claimant * There is no need to show it is reasonably foreseeable that they would be injured by the defective product.* This could be someone receiving the defective product as a gift
In what circumstances will a supplier of a defective product be liable under the CPA 1987?
- The person who suffered damage (the claimant) may request the supplier to identify the producer (or own brander or importer)* The request must be made within a reasonable period of time* It is not reasonably practicable for the claimant to identify those persons independently and * The supplier fails to identify the producer (or alternatively its own supplier) within a reasonable period. If the supplier does supply this information the claimant is then in a position to follow the supply chain to identify the relevant defendant so they will not be liable.
Who is a defendant for the purposes of the CPA 1987?
- The producer of the product (generally, the person who manufactured it). This could be a producer of a finished product or a componant of the finished product, or a processor of the product e.g. processor removing pits from olives if injury is caused by biting an olive pit.* Any person who held themselves out as the producer of the product by putting their name or mark on it (often referred to as the ‘own brander’) and * Any person who imported the product in order to supply it in the course of their business (this allows the claimant to sue locally rather than suing a manufacturer in a different country).When two (or more) potential defendants are liable to the claimant for the same damage, they are jointly and severally liable.Note, in very limited circumstances, a supplier may be a defendant under the CPA.
Doctors used a blood supply infected with Hepatitus C. They knew there was a risk of infection but gave no warnings to the public. Would the blood be defective under the CPA 1987?
Yes, the court held that the public had a legitimate expectation that the product (i.e. the blood) carried no such risk based on the circumstances. The product was therefore defective.
What is a ‘defect’ for the purposes of the CPA 1987?
A product is defective if its safety is not such as persons generally are entitled to expect. In determining whether a product is defective within this detinition, all the circumstances are to be taken into account, including: * Instructions and warnings provided with the product* The product packaging and the purpose for which the product was marketed* What might reasonably be expected to be done with the product and * The time when the product was supplied (i.e. the general state of the product’s safety at the time of supply)Example: a blender without non-slip pads that causes injury. Court would look at whether it was marketed as ‘state of the art’ or having all the latest features, whether there were any warnings about slipping during operation, whether use for heavy duty chopping which could cause slipping was intended, whether most other blenders provided non-slip pads at the time of supply etc. Note that a product may cause an injury but nevertheless not be defective within the meaning of the Act e.g. coffee hot enough to scald someone may not be defective, because customers expect it to be hot.
What type of damage is covered under the CPA 1987?
Damage is defined as death or personal injury or damage to property. Some types of damage are excluded from coverage: * Damage to the defective product itself cannot be recovered (similar to position in negligence where this is pure economic loss)* Damage to business property is not covered. Only damage to property that is of a kind ordinarily intended for private use and intended by the claimant mainly for their own private use can be recovered. * Property damage which does not exceed £275 cannot be recovered. This exception excludes small property damage claims from coverage under the Act.
What 4 defences are available to liability under the CPA 1987?
- No defect when the product was first put into circulation (i.e. show the product deteriorated over time or that a consumer or third party altered it e.g. by removing a safety feature)* Defendant did not supply the product in the course of a business* ‘State of the art’/’development risks’ defence* Contributory negligenceNote, liability under the Act cannot be limited or excluded.
A manufacturer makes an electric kettle and supplies it to a retail shop. The shop sells it to a customer. The customer uses it every day for a number of years until the flex becomes worn and dangerous. The customer is then injured by the flex and makes a claim under the CPA. Does the manufacturer have any defence available to a claim under the CPA?
Yes, if they can show that the kettle was not defective when supplied by the producer.
What is required to establish the defence to liability under the CPA 1987 that a defective product was not supplied in the course of a business?
It is a defence for the defendant to show that both of the following are satisfied: * The defendant was not acting in the course of a business when they supplied the product and* The defendant either was not the producer (or own brander or importer) of the product, or the defendant was not acting with a view to profit. Example: A woman who makes pottery as a hobby gives a mug to a friend as a present. The handle falls off the mug and the friend is scalded by hot coffee. The woman was the producer of the mug, and it was defective. However, she has a defence because she did not supply the mug to the friend in the course of a business and she was not acting with a view to profit. (If she had sold the mug to the friend for a small profit, she would not have been able to rely on this defence, even though she was not acting in the course of a business).
What is the ‘state of the art’ / ‘development risks’ defence to liability under the CPA 1987?
It is a defence for the defendant to show that:* the state of scientific and technical knowledge, * at the time when the product was supplied, * was not such that a producer of products of that type might be expected to have discovered the defect if it had existed in the products while they were under the defendant’s control. * Exception: a known risk, even if undetectableThe scope of this defence has been narrowly interpreted in situations in which a class of products carries a known risk of containing a defect, but the state of scientific and technical knowledge is such that the producer is unable to detect that defect before supply. In these circumstances, if the product supplied does contain the defect and causes damage, the producer will not be able to rely on this defence.
A producer of medical blood products is aware of the risk that batches of blood may be infected with a virus but is unable to detect the virus before the blood is supplied. A batch of blood does contain the virus when supplied and causes injury to those receiving it. Is the producer liable under the CPA 1987?
Yes, the producer is not able to rely on the ‘state of the art’ defence because the risk of the defect was known. If the virus had been unknown, they could have raised the defence
Can a breach of statutory duty give rise to a civil claim?
Yes, in certain circumstances:* The statute may expressly provide for a civil claim* The court may determine a civil claim can arise from a statute that is silent as to civil liabilityIf such a claim does exist, it is entirely separate from a claim in the tort of negligence e.g. a claimant may be unable to establish a successful claim in negligence where liability depends upon proving fault, but may nevertheless be able to succeed in a claim for breach of statutory duty.Note, civil claims are expressly excluded under section 47 of the Health and Safety at Work Act 1974.
Which statutes expressly provide for civil claims?
- Occupiers’ Liability Acts 1957 and 1984 * Consumer Protection Act 1987 If a statute does expressly provide for the imposition of civil liability, a claim is established by applying the specific provisions of the particular statute.
Which statute expressly excludes civil claims?
Section 47 of Health and Safety at Work Act 1974 as amended by the Enterprise and Regulatory Reform Act 2013.* It excludes civil liability for breaches of the duties imposed on employers by the Act and by health and safety regulations made under the Act (except when regulations expressly provide otherwise). * As a result, injured employees will generally not be able to base a claim on breach of statutory duty, and instead will need to rely on the tort of negligence and establish fault on the part of the employer. * Nevertheless, the content of the health and safety regulations made under HSWA remains relevant in a civil claim, because the duties imposed will indicate what the employer needs to do to meet the reasonable standard of care under the tort of negligence.
Where statutes impose duties but are silent as to whether a breach amounts to civil laibility, what 5 questions does the court consider in determining whether a civil claim can arise under the statute?
- Did Parliament intend the statute to give rise to a civil claim?* Did the claimant fall within the class of persons protected by the statutory duty? E.g. a duty to protect children could not be relied upon by an adult. * Was the statutory duty breached? Court will look at the specific wording of the statute to determine the duty e.g. it may be strict liability* Was the damage suffered by the claimant of a kind which the statute was intended to prevent?* Was causation of damages established i.e. was the harm suffered caused by the breach of the defendant’s duty?
How does the court decide whether Parliament intended for a statute to give rise to a civil claim?
Court will look at the wording of the particular statute and may consider: * Whether the duty was imposed for the protection of a limited class of the public and * Whether the statute provides for any other means of enforcement or other remedies.
A statutory duty requires waste to be transported in sealed containers to prevent environmental contamination. In breach of this duty, the defendant transports waste in an open container. Waste falls from the container and smashes the windscreen of the claimant’s car. Is civil liability to the claimant likely to arise from the breach of statutory duty?
No, the claimant’s damage does not appear to be of a kind which the statute was intended to prevent.
A statutory duty requires takeaway hot drinks are supplied in cups with lids to prevent scalding and spillages. A cafe ignores this and serves without lids. A child is scalded. Is civil liability to the child likely to arise from the breach of statutory duty?
Yes, the statute was intended to protect customers and their families so the duty applies. Scalding is the type of damage it was intended to protect against so all criteria are fulfilled.
A statutory duty requires fuel to be transported in double sealed tankers to reduce fire hazard. The defendant used a single sealed tanker, spills the fuel and contaminates a river harming the claimant’s fishing business. Is civil liability to the claimant likely to arise from the breach of statutory duty?
No, there was a breach of duty, it caused harm but the harm was not the type of damage intended to be covered by the statute so there is no claim.
In the tort of trespass to land, what is:* a claimant* a defendant* the duration of interference* the type of interference* fault* damages* defences
- Claimant: Any person in possession of land* Defendant: Any person carrying out the trespass* The duration of interference: Single trespass is sufficient* The type of interference: Direct invasion of property* Fault: No need to prove fault; only intend to do the act that causes the interference* Damages: Trespass is actionable per se, so no need to show actual damage* Defences: Customary, common law, or statutory right to enter, consent necessary
In the tort of private nuisance, what is:* a claimant* a defendant* the duration of interference* the type of interference* fault* damages* defences
- Claimant: Any person with a proprietary interest in land* Defendant: A landowner or any other person creating or adopting the nuisance* The duration of interference: There must be continuous interference* The type of interference: Indirect interference with property* Fault: Interference must be reasonable* Damages: Physical harm, economic loss, amenity damage from noise, smells etc.* Defences: Statutory authority or prescriptive right
In the tort of public nuisance, what is:* a claimant* a defendant* the duration of interference* the type of interference* fault* damages* defences
- Claimant: Members of the general public particularly affected by the nuisance, attornery general* Defendant: Any person creating the nuisance* The duration of interference: Single nuisance is sufficient* The type of interference: Direct or indirect* Fault: Interference must be unreasonable* Damages: Physical harm, personal injury, economic loss* Defences: General defences
In the tort of Rylands v Fletcher, what is:* a claimant* a defendant* the duration of interference* the type of interference* fault* damages* defences
- Claimant: Any person with an interest in land affected by the thing that escapes * Defendant: Any person in control of land from which the dangerous thing escapes * The duration of interference: Single escape is sufficient* The type of interference: Direct or indirect* Fault: Fault need not be proved* Damages: Damage to property of the type foreseeable by the defendant * Defences: Consent, foreseeable act of a stranger, act of God, statutory authority, contributory negligence
What is a claimant under:* Trespass to land* Private nuisance* Public nuisance* Rylands v Fletcher
- Trespass to land: Any person in possession of land* Private nuisance: Any person with a proprietary interest in land* Public nuisance: Members of the general public particularly affected by the nuisance, attorney general* Rylands v Fletcher: Any person with an intrest in land affected by the thing that escapes
What is a defendant under:* Trespass to land* Private nuisance* Public nuisance* Rylands v Fletcher
- Trespass to land: Any person carrying out the trespass* Private nuisance: A landowner or any other person creating or adopting the nuisance* Public nuisance: Any person creating the nuisance* Rylands v Fletcher: Any person in control of land from which the dangerous thing escapes
What is the duration of interference under:* Trespass to land* Private nuisance* Public nuisance* Rylands v Fletcher
- Trespass to land: Single trespass is sufficient* Private nuisance: There must be continuing interference* Public nuisance: Single nuisance is sufficient* Rylands v Fletcher: Single escape is sufficient
What is the type of interference under:* Trespass to land* Private nuisance* Public nuisance* Rylands v Fletcher
- Trespass to land: Direct invasion of property* Private nuisance: Indirect interference with property* Public nuisance: Direct or indirect* Rylands v Fletcher: Direct or indirect
What is fault under:* Trespass to land* Private nuisance* Public nuisance* Rylands v Fletcher
- Trespass to land: No need to prove fault, only intend to do the act that causes the interference* Private nuisance: Interference must be unreasonable* Public nuisance: Interference must be unreasonable* Rylands v Fletcher: Fault need not be proved
What is damages under:* Trespass to land* Private nuisance* Public nuisance* Rylands v Fletcher
- Trespass to land: Trespass is actionable per se, so no need to show actual damage* Private nuisance: Physical harm, economic loss, amenity damage from noise, smells, etc. * Public nuisance: Physical harm, personal injury, economic loss* Rylands v Fletcher: Damage to property of the type foreseeable by the defendant
What are the defences under:* Trespass to land* Private nuisance* Public nuisance* Rylands v Fletcher
- Trespass to land: Customary, common law, or statutory right to enter, consent necessary* Private nuisance: Statutory authority or prescriptive right* Public nuisance: General defences* Rylands v Fletcher: Consent, unforeseeable act of a stranger, act of god, statutory authority, contributory negligence
What are the 3 types of nuisance?
Nuisance involves the invasion (i.e. unlawful interference) of either private property rights or public property rights. The 3 types are:* Public nuisance (note, this is also a crime)* Private nuisance* Statutory nuisance
What is the definition of public nuisance?
- A public nuisance is an unreasonable interference with the comfort and convenience of life of a class of the public e.g. obstruction of the highway, carrying on an offensive trade, quarry blasting that causes dust, noise and vibrations over a large area, releasing clouds of toxic fumes that affect a whole neighhourhood.* An isolated incident can give rise to a claim in public nuisance but the interference must be unreasonable e.g. a temporary obstruction of the highway caused by loading or unloading goods may not be unreasonable. * Damage: can include both damage to property and personal injury. It must be so widespread in range or so indiscriminate in effect that it wouldn’t be reasonable to expect one person to take responsibility alone for the community at large.* An individual or the attorney general can sue.
Who is considered to be an ‘individual’ for the purposes of a claim in public nuisance?
An individual member of the affected class can only bring a claim if that person has suffered particular damage over and above the damage suffered by the class in general. Otherwise, only the attorney general can sueExample: The defendant operates a golf course next to a highway. Balls from the golf course are constantly hit onto the highway. This amounts to a public nuisance because it affects a class of the public. The claimant is driving along the highway when a golf ball hits the windscreen and shatters it. The claimant suffers personal injury. The claimant has suffered particular damage over and above that suffered by the class in general. The claimant can bring an action in public nuisance.
Who can bring an action in public nuisance if no individuals are eligible?
The attorney general, representing the public, can bring an action on behalf of the class of people affected. The object of such an action would be to seek an injunction to prevent the nuisance from continuing.
What is the definition of private nuisance?
Private nuisance is an unlawful interference with the claimant’s use and enjoyment of land. * An interference is unlawful when it is substantial and unreasonable * Private nuisance requires there to be a continuing state of affairs (an isolated event is not sufficient). * Damage is an essential element of the tort of private nuisance and it must be reasonably foreseeableIt is primarily concerned with conflicting uses of land - specifically, disputes between neighbouring land owners where the defendant uses their own land in a way which interferes with the claimant’s use of their land.
What constitutes ‘damage’ for the purpose of private nuisance?
Damage may be (but not limited to):* Physical damage to the land, such as flooding, or damage caused by vibrations, noxious fumes causing damage to plants* Amenity damage such as noise, dust and smells (interference with comfort or convenience); and * Encroachment onto land by, e.g. overhanging tree branches or by tree roots.
What is the main difference between damage in the tort of negligence and damage in the tort of nuisance?
- Nuisance: intangible damage such as noise or smells is sufficient. Damages for personal injury are not recoverable in a nuisance action as it deals with interference with rights in land.* Negligence: intangible damage is not be sufficient for the tort of negligence. Actionable damage means being physically or economically harmed.
What is the difference between trespass to land and private nuisance?
- Trespass to land: intentional and direct interference with the claimant’s possession of land. Trespass doesn’t need to be substantial or unreasonable. * Private nuisance: Damage is indirect Example: planting a tree on someone else’s land would be trespass, but gradual encroachment by tree roots would be nuisance (you would need to show this is substantial and unreasonable).
Which 3 individuals may be sued for private nuisance?
- Creator of the nuisance* Occupier of the land where nuisance exists* Landlord in limited circumstances
Who is the ‘creator of the nuisance’ in the context of private nuisance?
The person who creates the nuisance. * Note, a person who creates a nuisance on land neighbouring that of the claimant can be sued, even if they are no longer in occupation of that land. * A person who creates a nuisance on the highway, causing actionable damage to the claimant’s land, can be sued
Who is the ‘occupier of the land’ in the context of private nuisance?
- A nuisance that emanates from neighbouring land may have been created by the occupier of the land, who would therefore be liable as the creator. * The occupier is also liable for nuisances created on their land by employees and others under the occupier’s control, and for nuisances created by independent contractors when the activities with which the contractor is engaged carry a special danger of causing a nuisance. * The occupier of land can even be liable for a nuisance created there by a trespasser or by a natural event, if the occupier adopts or continues such nuisance.
When is an occupier considered to ‘adopt’ a nuisance?
The occupier adopts a nuisance if they make use of the thing that constitutes the nuisance for their own use.Example: A drain pipe is installed on land without the occupier’s permission, so constituting a trespass. The occupier makes use of the drain to take water away from the land. The drain later blocks and causes water to flood onto neighbouring land. The blocked drain is a nuisance which the occupier has adopted, making the occupier potentially liable.
When is an occupier considered to ‘continue’ a nuisance?
The occupier continues a nuisance if, once they know or ought to have known about it, they fail to take reasonable steps to deal with it.Example: Defendant is the occupier of a steep site. Naturally occurring falls of rock and soil cause damage to the claimant’s neighbouring land. The defendant may be liable by failing to take reasonable steps to deal with the naturally occurring nuisance.
An employee regularly dumps grease and other food waste on a property boundary with knowledge of the restaurant proprietor. This emits noxious odours and attracts vermin. The owner of the pub next door is losing customers as a result. The restaurant proprietor leaases the property and there is a clause in the lease which requires food waste to be stored in sealed containers and removed through a disposal service. The landowner is aware that the restaurant is ignoring this rule. Who can the owner of the pub take a claim against?
The owner can take a claim in private nuisance against: * The employee* The restaurant proprietor* The landowner
Who can bring a claim in private nuisance?
- The claimant must have a proprietary interest in the land affected. * This covers freehold owners, tenants, and persons in exclusive possession. * Persons who are present on the land but do not have an interest in the land, such as family members, lodgers, or employees, cannot bring a claim e.g. adult children who live with their parents but have no proprietary interest in their home cannot bring a claim in nuisance.
What constitutes an ‘unreasonable interference’ in private nuisance?
An interference with the claimant’s land is unlawful only if it is unreasonable. In assessing reasonableness, the courts balance the rights of landowners to use their land as they wish. The court has to consider what is reasonable according to how people can be expected to live together in society. The following are taken into account:* Intensity and duration* Character of the Neighbourhood (amenity damage only)* Abnormal sensitivity* Malice* Utility of the conductNote, the court is concerned with the reasonableness of the interference not the reasonableness of the defendant’s conduct. This means that a defendant who is responsible for an unreasonable interference can be liable in nuisance despite having taken reasonable care.
What does ‘intensity and duration’ mean in the context of determining whether an interference is unreasonable in private nuisance?
The greater the intensity of the interference and the longer it lasts, the more likely it is to be judged unreasonable. The time of day (or night) at which the alleged nuisance occurs will also be relevant.Example: interference arising out of temporary building works during normal working hours will not normally amount to a private nuisance but building works at night may qualify.
What does ‘character of neighbourhood’ mean in the context of determining whether an interference is unreasonable in private nuisance?
When the alleged nuisance is amenity damage such as noise, dust, and smells, the court will have regard to the character of the neighbourhood in deciding whether the interference is unreasonable. * Example: the occupier of a house located on a main city street may be expected to tolerate a higher level of noise interference than the occupier of a house in a quiet country village. Where the alleged nuisance is physical damage to the land or encroachment onto the land, the character of the neighbourhood is not taken into account in determining whether the interference is unreasonable* Example: if plants in the claimant’s garden are being killed by poisonous fumes emitted from the defendant’s factory, the fact that the claimant’s garden is located in a heavily industrial area does not prevent the interference from being judged unreasonableNote, environments change over time so the status of a locality can change in terms of what is reasonable * Example: pig farm in area that was originally rural may become a nuisance if the area becomes heavily populated
What does ‘abnormal sensitivity’ mean in the context of determining whether an interference is unreasonable in private nuisance?
- The court has to consider what is reasonable according to how people can be expected to live together in society. This means that behaviour complained of may not amount to a nuisance if it only interferes with the claimant’s use of land because of the claimant’s abnormal sensitivity. * Test: would it be objectionable to a reasonable person in the community* Abnormal sensitivity may arise out of extreme sensitivity in personal senses (e.g. smells) or in an abnormally sensitive activity (e.g. growing orchids)Example: Claimant occupies business premises on the floor above those of the defendant. The defendant heats his premises to a normally acceptable level, which would not be expected to damage property or cause any discomfort. However, the heat does cause damage to the business stock of the claimant, which is abnormally sensitive to heat. The claimant is unlikely to be able to establish a claim in nuisance.
What does ‘malice’ mean in the context of determining whether an interference is unreasonable in private nuisance?
Behaviour which might be a reasonable and lawful use of land may become unreasonable, and so an actionable nuisance, when it is motivated by malice. Example: Defendant plays piano loudly, disturbing the occupier of a neighbouring flat. If this is done with the deliberate purpose of annoying the neighbour, it is more likely to be considered a nuisance.
What does ‘utility of the conduct’ mean in the context of determining whether an interference is unreasonable in private nuisance?
The court will take into account the utility of the defendant’s conduct e.g. a power plant generating smoke and noise interferes with neightbours’ rights of enjoyment and use but this may be reasonable if plant is critical to energy of the region.
Can a defendant who takes reasonable care be liable for the tort of private nuisance?
Yes, the court is concerned with the reasonableness of the interference, rather than with the reasonableness of the defendant’s conduct. This means that a defendant who is responsible for an unreasonable interference can be liable in nuisance despite having taken reasonable care.
If noise vibrations from the defendant’s activity (that ordinarily would cause no damage) cause a wall to collapse because of hidden faults underground, is the defendant likely to be liable for private nuisance?
No, the damage would not be reasonably foreseeable so therefore the defendant would not be liable
Which 2 defences apply to private nuisance?
Prescription* The defendant may obtain a prescriptive right to carry on an activity that constitutes a private nuisance. The nuisance must have been continuously carried on for at least 20 years. Throughout that time, it must have been actionable as a private nuisance but no action was undertaken to stop it. This defence requires someone in occupation of nearby land who was affected by the nuisance. * This defence is difficult to prove* Example: someone living next to a pig farm for 20 years. In year 21 they decide to sue for the small. This defence would apply. Statutory Authority* Where an actionable nuisance arises from activity permitted by statute, the statute must be interpreted by the courts to ascertain whether the nuisance itself has been authorised (expressly/impliedly) and what, if any, remedy is available * Example: a statute authorising the construction and operation of a power plant
Is planning permission a defence to private nuisance?
No.Example: The owner of a pig farm is granted planning permission to construct a new unit adjacent to the claimant’s land. Bad smells emanate from the new unit, interfering with the claimant’s gardening and outside activities. The defendant pig farm owner cannot rely on the grant of planning permission as a defence to the claim in nuisance.
Does the fact that a nuisance existed before the claimant was exposed to it constitute a defence to private nuisance?
No. The fact that the nuisance was already in existence before the claimant came to it is not a defence. Example: Defendant’s factory emits noxious fumes affecting neighbouring land. Claimant moves into a house on the neighbouring land and complains of the nuisance from the fumes. It is no defence for the defendant to show that it had already been emitting such fumes for five years before the claimant moved to the house.
Which 3 remedies are available for private nuisance?
Injunction* Often, the claimant wants to force the defendant to cease (or limit) the activity which is causing the nuisance, so the claimant will seek the remedy of an injunction. * The claimant does not have an automatic right to an injunction.* The court will determine in its discretion whether the grant of an injunction is appropriate in the circumstances. Damages* Damages may be awarded to compensate the claimant for the harm caused by the nuisance. Abatement* Abatement is a self-help remedy in which the claimant takes steps to stop the nuisance.* The claimant must do no more than is necessary to abate the nuisance. * Where it is necessary for the claimant to enter onto the defendant’s land to abate the nuisance, the claimant must first give notice and allow time for the necessary remedial action to be taken. * A person who did not give such notice may be liable for trespass to land. Conversely, when proper notice has been given, entry onto land to abate a nuisance would provide a defence to an action in trespass
What is the rule in Rylands v Fletcher?
- The rule imposes strict liability (i.e. no need to show fault) when there is an escape of a dangerous thing from the defendant’s land in the course of a non-natural use of the land which causes damage that was reasonably foreseeable (note, personal injury is not recoverable). * Rylands v Fletcher is different from nuisance in that there is no requirement for a continuing state of affairs. An isolated escape is sufficient. Defences include unforeseeable acts of strangers, act of God, consent, contributory negligence, statutory authorityLook for facts where a defendant stores a large quantity of chemicals in a populated area.
What 3 elements must be established to establish the tort in Rylands v Fletcher?
- The defendant brings onto their land something likely to cause harm if it escapes (i.e. not necessary for the thing itselt to be dangerous e.g. large volume of water/chemicals)* The defendant was engaged in a non-natural use of the land (i.e. they gather something on the land that would not natureally be there. It must be special use of the land that carries an increased risk of danger to others) and* The thing gathered on the land does escape and causes damage (note, damage for personal injurt is not recoverable)
What factors will a court take into account in determining whether the use of the land was unnatural in a Rylands v Fletcher claim?
- Degree of risk created by the defendant’s use* Prevailing standards of area
Is it a defence to a Rylands v Fletcher tort claim that the defendant was not at fault?
No, it is a strict liability tort.
Is it a defence to a Rylands v Fletcher tort claim that the escaoe if the substance from the land was not reasonably foreseeable?
No. However, the damage caused by the mistake must be reasonably foreseeable as a consequence of the escape.
A defendant owned a block of flats close to a railway embankment. The defendant also owned the embankment. A leaking pipe in the building causes a large amount of water to saturate the embankment. Eventually, this caused it to collapse and damaged the claimant’s gas pipeline. The claimants were forced to carry out major repairs to prevent the pipe fracturing. Did the rule in Rylands v Fletcher apply?
No, the defendant owned the embankment so the water remained on their land, it never escaped.
Which 5 defences are available to a tort claim based on the rule in Rylands v Fletcher?
Unforeseeable Act of Stranger * It is a defence to show that the escape was caused by the unforeseeable act of a stranger e.g., if a stranger deliberately causes water to escape from the defendant’s land by opening a valve and blocking the drain so that the water overflowsAct of God * It is a defence to show that the escape was caused by unforeseeable natural circumstances against which it would be impossible to take precautions e.g. an escape of water caused by exceptionally and unforeseeably high rainfall. Consent* A claimant will not have a successful claim if they have consented, expressly or impliedly, to the accumulation of the substance in question. Contributory Negligence * A partial defence may be availableStatutory Authority* Statutory authority may provide a defence to a claim in the same way as for nuisance.
