Tort - ALL Flashcards

Question

What are the defences to torts of trespass to the person?

Answer 1

* Consent* Necessity* Self-defence* Lawful arrest and lawful authority

Answer 2

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.

Answer 3

* **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

Answer 4

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.

Answer 5

* 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.

Answer 6

* 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**.

Answer 7

* 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.

Answer 8

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**

Answer 9

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.

Answer 10

* 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**.

Answer 11

* The tort is actionable per se, so if the claimant has n**ot 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**.

Answer 12

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 **damages**Note, 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)

Answer 13

* 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.

Answer 14

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.

Answer 15

**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.

Answer 16

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.

Answer 17

**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 breach****Did 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 foreseeable**Exceptions**: egg shell skull rule and similar in type rule**If not - no liability****If yes, D is liable unless they can establish a defence**

Answer 18

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.

Answer 19

**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**

Answer 20

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

Answer 21

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

Answer 22

* 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.

Answer 23

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?

Answer 24

**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**

Answer 25

**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)

Answer 26

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.

Answer 27

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.

Answer 28

* 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.

Answer 29

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**

Answer 30

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.

Answer 31

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 care**How 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.

Answer 32

* 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.

Answer 33

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.

Answer 34

* 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

Answer 35

**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.

Answer 36

* 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**.

Answer 37

**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**.

Answer 38

* 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**.

Answer 39

* **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.

Answer 40

'**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.

Answer 41

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.

Answer 42

**No**Example: 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**.

Answer 43

**Claimant**

Answer 44

* **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.

Answer 45

* 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**.

Answer 46

**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.

Answer 47

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.

Answer 48

The **claimant** has the burden of proving causation **on the balance of probabilities**. The claimant must show that it was**more likely than not** that the defendant's breach (and not some other cause) caused the claimant's harm.

Answer 49

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.

Answer 50

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.

Answer 51

**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 deafness**Indivisible**:* 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.

Answer 52

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**.

Answer 53

* 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**

Answer 54

* 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.

Answer 55

**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**

Answer 56

* 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**.

Answer 57

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.

Answer 58

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.

Answer 59

* 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

Answer 60

**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.

Answer 61

* 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 r**easonably 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**.

Answer 62

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.

Answer 63

**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.

Answer 64

**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.

Answer 65

* **Contributory negligence** (partial defence)* **Voluntary assumption of risk** (volenti non fit injuria) (complete defence)* **Exclusion of liability** (subject to statutory controls)* **Illegality** (complete defence)

Answer 66

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.

Answer 67

**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.

Answer 68

**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.

Answer 69

**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).

Answer 70

* 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.

Answer 71

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.

Answer 72

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**.

Answer 73

* 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.

Answer 74

**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.

Answer 75

* **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.

Answer 76

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)

Answer 77

* **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.

Answer 78

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.

Answer 79

* 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)

Answer 80

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.

Answer 81

* 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.

Answer 82

* 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.

Answer 83

**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.

Answer 84

**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 **

Answer 85

* 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**.

Answer 86

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.

Answer 87

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.

Answer 88

**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.

Answer 89

* 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

Answer 90

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**

Answer 91

* **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.

Answer 92

* 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.

Answer 93

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.

Answer 94

1. **Primary** victims2. **Secondary** victimsThe **duty of care rules are different** for each of them.

Answer 95

* **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.

Answer 96

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.

Answer 97

**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**.

Answer 98

**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.

Answer 99

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.

Answer 100

**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.

Answer 101

* 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

Answer 102

* 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.

Answer 103

* **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.

Answer 104

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

Answer 105

**Yes**, as this is within the course of employment

Answer 106

**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.

Answer 107

* 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.

Answer 108

* 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**.

Answer 109

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

Answer 110

* 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**.

Answer 111

* 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.

Answer 112

* **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]

Answer 113

**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)

Answer 114

**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.

Answer 115

**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.

Answer 116

The **usual rules apply**The **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

Answer 117

* **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**.

Answer 118

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.

Answer 119

* Was a **tort committed**?* By an **employee**?* In the **course of employment**?

Answer 120

* 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**.

Answer 121

* **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.

Answer 122

**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**.

Answer 123

Various tests have developed: * **Earlier approaches**: The **control** and **integration** tests* **Modern approach**: the **economic reality test**These will be relevant if liability is disputed by the employer.

Answer 124

Did the **employer** have the **right to control** the **method** of doing the work?

Answer 125

An **employee** works as an **integral part** of the employer's business, whereas an **independent contractor**'s work is only **accessory** to the business.

Answer 126

**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)

Answer 127

**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**

Answer 128

**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**.

Answer 129

* **Negligence** of the employee* **Criminal actions** of the employee* **Disobedience** to instructions * **Deviations** from an **authorised journey**

Answer 130

**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.

Answer 131

* **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.

Answer 132

* **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.

Answer 133

**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.

Answer 134

**Likely not**.

Answer 135

**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

Answer 136

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.

Answer 137

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.

Answer 138

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**.

Answer 139

**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**

Answer 140

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.

Answer 141

* **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.

Answer 142

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)

Answer 143

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

Answer 144

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**

Answer 145

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.

Answer 146

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.

Answer 147

* 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.

Answer 148

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**

Answer 149

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.

Answer 150

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**.

Answer 151

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**.

Answer 152

**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).

Answer 153

* 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.

Answer 154

1. 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.

Answer 155

* Damages for **personal Injury of the deceased** * Damages for **dependants** * Damages for **bereavement*** Damages for **funeral expenses**

Answer 156

**Yes**, the claim may be brought against their estate.

Answer 157

**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.

Answer 158

**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.

Answer 159

* 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**.

Answer 160

**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**.

Answer 161

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.

Answer 162

If the defendant's tort **caused the victim's death**

Answer 163

Only the child who was **financially dependent** on him is entitled to make a claim for loss of dependency.

Answer 164

* **Occupiers' Liability Act 1957**: Occupier of the premises* **Occupiers' Liability Act 1984**: Occupier of the premises* **Defective Premises Act 1973**: Builders and Landlords

Answer 165

* **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

Answer 166

* **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

Answer 167

* **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

Answer 168

* **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

Answer 169

* **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

Answer 170

* **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

Answer 171

Occupiers' liabilty is a **specialised application** of negligence.

Answer 172

**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

Answer 173

**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 party**Non-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**.

Answer 174

* 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**.

Answer 175

* 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

Answer 176

* 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.

Answer 177

* 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

Answer 178

**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"

Answer 179

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.

Answer 180

**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 against*****Practicability of taking precautions*** Removing the moss, installing handrails etc.

Answer 181

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)

Answer 182

* 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.

Answer 183

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

Answer 184

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**

Answer 185

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**.

Answer 186

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

Answer 187

**No**, they will not be liable as they checked the qualifications and experience and had a safetly inspector approve the work.

Answer 188

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.

Answer 189

* Exclusion of liability (subject to statutory controls)* Voluntary assumption of risk (complete)* Contributory negligence (partial)

Answer 190

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.

Answer 191

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).

Answer 192

* 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.

Answer 193

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.

Answer 194

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**.

Answer 195

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.

Answer 196

**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.

Answer 197

* 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.

Answer 198

* 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**.

Answer 199

* 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.

Answer 200

* **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.

Answer 201

* **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)

Answer 202

* **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)

Answer 203

* **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

Answer 204

* **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)

Answer 205

* **Liability based in negligence**: Any foreseeable claimant* **Liability based on the Consumer Protection Act 1987**: Anyone injured by a defective product

Answer 206

* **Liability based in negligence**: Failure to exercise reasonable care in supplying defective product* **Liability based on the Consumer Protection Act 1987**: Supplying defective product

Answer 207

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**.

Answer 208

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).

Answer 209

The **usual elements** of a claim in negligence must be established:* **Duty** of care* **Breach** of duty* **Causation** of damage

Answer 210

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 itself**The **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.

Answer 211

* 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

Answer 212

* 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

Answer 213

* 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).

Answer 214

**Personal injury** caused by the product. * This includes any **economic loss consequential to such injury,** such as loss of wages or costs of medical treatment**Damage 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**.

Answer 215

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.

Answer 216

**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.

Answer 217

**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.

Answer 218

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.

Answer 219

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**.

Answer 220

* 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

Answer 221

**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**

Answer 222

* **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

Answer 223

* 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.

Answer 224

* 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.

Answer 225

**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.

Answer 226

A product is defective i**f 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.

Answer 227

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.

Answer 228

* **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 negligence**Note, liability under the Act cannot be limited or excluded.

Answer 229

**Yes**, if they can show that the kettle was **not defective when supplied** by the producer.

Answer 230

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).

Answer 231

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 undetectable**The 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**.

Answer 232

**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

Answer 233

**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 liability**If 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**.

Answer 234

* **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**.

Answer 235

**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.

Answer 236

* 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?

Answer 237

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**.

Answer 238

**No**, the claimant's damage does **not appear to be of a kind which the statute was intended to prevent**.

Answer 239

**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.

Answer 240

**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.

Answer 241

* **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

Answer 242

* **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

Answer 243

* **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

Answer 244

* **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

Answer 245

* **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

Answer 246

* **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

Answer 247

* **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

Answer 248

* **Trespass to land**: Direct invasion of property* **Private nuisance**: Indirect interference with property* **Public nuisance**: Direct or indirect* **Rylands v Fletcher**: Direct or indirect

Answer 249

* **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

Answer 250

* **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

Answer 251

* **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

Answer 252

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

Answer 253

* 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.

Answer 254

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.

Answer 255

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.

Answer 256

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 foreseeable**It 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.

Answer 257

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.

Answer 258

* **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**.

Answer 259

* **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).

Answer 260

* **Creator** of the nuisance* **Occupier** of the land where nuisance exists* **Landlord** in limited circumstances

Answer 261

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

Answer 262

* 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.

Answer 263

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.

Answer 264

The occupier continues a nuisance if, **once they know or ought to have known** about it, they f**ail 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.

Answer 265

The owner can take a claim in private nuisance against: * The employee* The restaurant proprietor* The landowner

Answer 266

* 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.

Answer 267

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 conduct**Note, 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**.

Answer 268

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.

Answer 269

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 unreasonable**Note, **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

Answer 270

* 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.

Answer 271

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.

Answer 272

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.

Answer 273

**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.

Answer 274

**No**, the damage would **not be reasonably foreseeable** so therefore the defendant would not be liable

Answer 275

**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

Answer 276

**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.

Answer 277

**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**.

Answer 278

**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

Answer 279

* 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 authority**Look for facts where a defendant stores a large quantity of chemicals in a populated area.

Answer 280

* 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)

Answer 281

* **Degree of risk** created by the defendant's use* **Prevailing standards** of area

Answer 282

**No**, it is a strict liability tort.

Answer 283

**No**. However, the **damage** caused by the mistake must be reasonably foreseeable as a consequence of the escape.

Answer 284

**No**, the defendant owned the embankment so the water remained on their land, it **never escaped**.

Answer 285

**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 overflows**Act 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 available**Statutory Authority*** Statutory authority may provide a defence to a claim in the same way as for nuisance.