Tort/DR: EXTRA Flashcards
What is the meaning of the fact that an employer’s duty to its employees is personal and non-delegable?
Employer can delegate tasks but is held legally responsible when a contractor it employed is negligent.
Can breaches of statutory duty be relied on by employees for a claim against an employer?
No but can be used to prove breach
Specifically, what do employers owe their employees a duty to provide?
- Competent fellow staff
- Adequate plant/equipment
- Provide and maintain a proper system of work and supervision
- Safe place of work
Damages for PI: when does loss of earning capacity apply?
If C is still working but would suffer a disadvantage on the job market in the future
NOT if they are no longer working at all
What happens if written questions are put to an expert who does not answer?
Court may order that:
1. Party instructing expert cant rely on the evidence of that expert
2. Fees of that expert are not recoverable
Deadline for expert to reply to written questions?
within 28 days of service of the report
What form must expert evidence be in to be admissible?
Report that complies with Part 35
What is the ‘development risks’ defence to liability under the CPA 1987?
Given the state of knowledge (highest possible standard of knowledge in the world) at time of supply, it wasnt reasonable to expect the producer to have been aware of the defect NOT inability to test a product
Potential defendants in negligence and under the CPA 1987 for product liability
NEGLIGENCE
1. Manufacturers
2. Repairers
3. Installers
4. Suppliers if they should inspect
CPA 1987
1. Producer
2. Own brander
3. Importer
4. Forgetful Supplier
What can be recovered for property damages under negligence and the CPA 1987?
NEGLIGENCE: everything except the cost of replacement/repair (if not too remote/reasonably foreseeable)
CPA: PI (inc mental) and property over £275, NOT business prop
Defences under the CPA 1987
- Defect attributable to compliance with legal requirements
- D supplied the product otherwise than in the course of business
- Defect didn’t exist when D supplied the product
- Manufacturer of component parts isnt liable for defect in finished product.
- D did not supply the product to another
- ‘Development risks’ (state of the art)
Who can sue for private nuisance?
Only a person with the right toexclusive possession deriving from a proprietary interest
○ Owner/occupier
○ Tenant (in leasehold)
Who are the potential defendants for private nuisance?
- CREATOR (even if land now occupied by someone else)
- OCCUPIER if created or another created (vicarious liability, independent contractor, created by another if adopted or continued
- LANDLORD if authorised, Nuisance existed at start of letting and landlord knew or ought reasonably to have known it, landlord covenanted to repair the premises, or has the right to enter to do so, and, fails to make the repairs, giving rise to the nuisance
Private nuisance:m when is the factor of the character of the neighbourhood relevant?
only relevant for interference causing personal discomfort and inconvenience (rather than physical (material) injury to property)
What interferences are covered by private nuisance?
- Encroachment
- Direct physical injury to neighbours land
- Interference with quiet enjoyment of their land
NOT PI
Under which tort of land can PI be recovered for?
Public nuisance
When is permission not needed to commence part 20 additional claim?
If it is issued (before or) at the same time as filing the defence.
When do the rules of service of witness statements not apply and what can the judges do in these circumstances?
Small claims
Judge can still restrict evidence to ensure parties on =footing/case dealt with fairly
What form must expert evidence be in to be admissible?
A report that complies with Part 35
When will employers have breached their duty to provide a safe system of work via imposition of stress?
Threshold q: was stress reasonably foreseeable?
Consider:
1. Nature/extent of work done
2. Signs from the employees themselves
Employers liability and stress: What can employers do/assume regarding stress at work?
Yes, employer can generally assume employee is up to normal pressure of the job and can take what they say at face value
5 examples of when an employee will have committed a tort ‘in the course of their employment’?
- Wrongful act authorised act
- Authorised act carried out in wrongful (careless) and unauthorised way (Eg. Unloading oil whilst smoking)
- Expressly prohibited acts which furtherer the employers business
- Intentional tort for own purposes but theres a sufficient close connection between the work they were employed to do (what was the nature of job?) and tort (eg boys school warden and systematic abuse)
- Frolic cases where Employee deviated from the employers instructions but was still carrying out the employers business/fraud stemmed from employer authorised act
Conditions for occupier to owe duty to trespasser?
- Aware of danger/reasonable grounds to believe it exists
- Know/reasonable grounds to believe trespassers are/may come into in vicinity of the danger
- Reasonably be expected to offer some protection against risk
How can an occupier to comply with their duty of care to visitors?
Warning notice thats adequate to keep that particular visitor safe, consider
◊ Nature of warning: specific or too general
◊ Nature of danger: if hidden, warning needs to be more specific
◊ Type of visitor-written warning might not be enough for child
(distinguished from exclusion of liability)
Elements to establish product liability in negligence under narrow rule in Donoghue v Stevenson
- D manufacturer
- C consumer
- Item causing damage is a product
- Product reached consumer in form it left manufacturer with no reasonable possibility of intermediate inspection
When do the rules on service/later service of witness statements not apply
Small claims
But judges can still restrict evidence
