Tort Law Flashcards
negligence general definition
An act or a failure to act which causes injury or damage to a person or their property
Blyth definition of negligence
failing to do something which the reasonable person would do or doing something the reasonable person would not do
3 things needed to be liable for negligence
- They owe the c a duty of care,
- They breach the duty and,
- Causes reasonably foreseeable injury or damage.
Duty of Care
a moral or legal obligation to ensure the safety or wellbeing of others
Donoghue v Stephenson
the neighbour principle
Atkin - You must take reasonable care to avoid acts or omissions which can reasonably be likely to injure your neighbour
define neighbour
a person whom you owe a duty of care
Caparo 1990
3 part test to establish negligence:
- it has to be foreseeable,
- there has to be proximity or neighbourhood and,
- it must be fair, just and reasonable to impose a duty
Robinson v Chief Constable of West Yorkshire 2018
Caparo should only be used in novel situations where no previous precedent has been set.
Kent v Griffiths
Ambulance service owes a duty of care, it was reasonably foreseeable that an ambulance turning up late would cause further illness.
Bourhill v Young
the link has to be close, the person cannot be just an innocent bystander no matter the harm accidentally caused
Hill v Chief Constable of West Yorkshire
reluctant to find that it is fair, just and reasonable to impose a duty of care on public authorities such as the police etc.
A reasonable person in negligence
a professional - Bolton
a learner - Nettleship
a child - Mullin
Paris v Stepney
vulnerable people need a higher standard of care
Bolton v Stone
Lower standard depending on the size of risk and the actions already taken to prevent injury
Latimer v AEC Ltd.
If reasonable steps have been taken it is not necessary to incur further costs
Roe v Minister of Health
there is no breach if the danger is unknown
Watt v Herefordshire
in an emergency, there is a greater risk and a lower standard of care if the risks are justifiable.
Barnett v Chelsea and Kensington Hospital
introduces the “but for?” test
Wagon Mound
sufficient connection between negligence and damage that could be foreseeable
Hugh v Lord Advocate
injury is foreseeable, the type of injury doesn’t have to be
Smith v Leech Brain and co.
eggshell rule, take the victim as you find them
reasonably foreseeable harm even if it made more serious by a pre-existing condition
liable for all subsequent consequences
res ipsa loquitur
the thing speaks for itself
Scott v London and St Katherine Docks co.
res ipsa loquitur case
Law Reform Act 1945
contributory negligence
Any damages awarded can be reduced according to the extent or level to which C contributed to their own harm.
Sayers v Harlow
The local council was liable, however the actions the d took contributed to her injury and damages were reduced 25%.
Jayes v IMI
admitted fault for serious injury so was 100% liable
Volenti non fit injuria
no wrong done to the willing
no wrong done to the willing
volenti non fit injuria
volenti requirements
- knowledge of precise risk
- exercise of free choice
- voluntary acceptance of risk
Volenti - Road Traffic Act
consent does not apply to traffic accidents
Haynes v Harwood
there was a duty to protect the public so volenti did not apply
sidway v maudsley hospital
consent does not require an extensive list of all of the symptoms and remote side effects in medical cases
Re: T
must consent to all treatment
Chatterton
must be aware of likelihood of risks
Montgomery
must be given sufficient information to make an informed choice
ICI v Shatwell
If the c acts against employers instructions or against statutory rules there can be an exception where volenti succeeds
occupiers liability
a duty to keep visitors safe from harm from the state of the premises
common law
Occupiers Liability Act 1957
visitors
Occupiers Liability Act
1984
trespassers
OLA 57 S1(2)
occupational control
Wheat v Lacon and Co
can be more than one occupier
OLA 57 S1(3)
premises inclides ‘any fixed or moveable structure, including any vessel, vehicle and aircraft’ this includes land
visitor
invitee, licensee, those with contractual permission or a statutory right
common duty 57 S2(2)
take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe using the premises for the purpose which they were invited
Laverton v Kiapasha
took all reasonable means by mopping, signs etc.
Dean and Chapter of Rochester Cathedral
tripping, slipping and falling are everyday occurences and accidents happen
duties owed to children
common duty and special duty
57 S2(3)(a)
the occupier must be ‘prepared for children to be less careful than adults and the premises must be reasonably safe for a child of that age’.
Glasgow City Council v Taylor
The occupier should guard against any known allurement or attraction which may place a child visitor at risk of harm.
Phipps v Rochester
there should be parental supervision for young children
Jolley v Sutton
An occupier is only liable for foreseeable harm
OLA 57 S2(3)(b)
‘An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incidental to it, so far as the occupier leaves him free to do so.’
Roles v Nathan
The occupier is not liable for something associated with the visitors trade.
contractors OLA 57 S2(4)(b)
not liable for ‘damage caused to a visitor by a danger due to the faulty execution of any work or construction, maintenance or repair by an independent contractor employed by the occupier.’
occupiers must prove for contractors
- reasonable to entrust the work
- contractor is competent
- they inspected the work if possible
cases for contractors
- reasonable = Haseldine
- competent = Bottomly
- inspect = Woodward
a trespasser
Someone who has no permission to be on the premises or a visitor who has gone beyond their permission.
OLA 84 S1(1)(a)
“in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them”
OLA 84 S1(3)
An occupier of premises owes a duty to a trespasser if —
(a) is aware of the danger or has reasonable grounds to believe that it exists;
(b) knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger; and
(c) the risk is one against which, in all circumstances of the case, he may reasonably be expected to offer the other some protection.
OLA 84 S1(4)
the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.
Ratcliff
Not liable if T is injured by an obvious danger
Donoghue v Folkestone
Time of day and year will impact on whether O is liable
Tomilson
Don’t have to spend money to protect from obvious dangers
Higgs v Foster
Not liable if they had no reason to suspect presence of a T
Rhind v Astbury
Not be liable if unaware or had no reason to suspect danger existed
Keown v Coventry NHS
Not liable if child understands the danger
Baldaccino
no duty to warn of obvious duty
Warning sign s2(4)(a) OLA 57
a warning is ineffective unless ‘in all the circumstances it was enough to enable the visitor to be reasonably safe.’
its up to the judge to decide
Rae v Marrs
Warning sign is not enough if it cannot be read (e.g. in the dark or hidden)
Westwood v Post Office
a warning is enough for trespassers
Winfield definition and who private nuisance concerns
Concerns people living in close proximity.
Winfield: ‘an unlawful indirect interference with a person’s use or enjoyment of land or some right over, or in connection with it.’
Two types of private nuisance
- Loss of amenity
2. Material damage
the claimant in private nuisance
case?
tenant/owner/someone affected with a legal interest.
Hunter v Canary Warf: can’t claim without a legal interest e.g. children or lodgers.
the defendant in private nuisance
Creator/owner that adopts, creates, causes or allows a nuisance. Doesn’t need a legal interest in the land from which nuisance is coming.
Tetley v Chitty
council allowed the noise so they are the d
Sedleigh Denfield
the owner was aware and allowed it to continue so they adopted it and can be the D.
Natural nuisances
case?
can be liable if it is a result of natural causes and they are aware of the risk but failed to deal with it properly.
Case: Leakey v National Trust
three requirements of private nuisance
- an unlawful and unreasonable use of land
- leading to an indirect interference
- with the c’s use or enjoyment of their land
Unreasonable
The courts decide if it is unreasonable
The expectation for neighbours to have a certain amount of ‘give and take’ and whether it is reasonable or excessive.
Interference
Physical damage/interference with quiet enjoyment.
Physical damage: there will be a nuisance.
St Helen’s Smelting Co v Tipping
physical damage can be interference
Quiet Enjoyment
if there is an interference with quiet enjoyment the court will assess 5 factors of reasonableness
factors of reasonableness
- Locality
- Duration
- Time of day
- Malice
- Sensitivity
Locality and case
the character of the neighbourhood
Sturges v Bridgeman: “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”.
Duration and case
should be continuous, it depends on the circumstances.
Crown River Cruises: A short-term display can amount to an actionable nuisance.
Time of Day
disturbance at night is more serious than during the day.
Malice and cases
A deliberately harmful act is normally unreasonable
Hollywood Silver Fox Farm v Emmett: meant to cause deliberate harm, so D was liable.
Christie v Davey: acts of revenge in response to unreasonable behaviour can also be a nuisance.
Sensitivity
If the c is unduly sensitive they may not have a claim.
Robinson v Kilvert: LJ - “A man who carries out an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property.”
Rylands v Fletcher definition
where the c’s property is damaged or destroyed by something from a neighbouring property
It is a strict liability and a common law offence
Rylands v Fletcher Case and Requirements
Collects large unnatural volume of water, caused damage.
Requirements from Sir Blackburn:
1. That the D brought something on to his land
2. That the D made a non-natural use of the land
3. The thing was likely to do mischief it is escaped
4. The thing escaped and caused damage
R v F - the claimant
A person who has an interest in the land that has suffered. Could own, rent or have a proprietary interest.
R v F - the defendant
The owner or occupier of the land; must meet all four requirements of the tort to be liable.
Read v Lyons
Requires an escape from a place where the d has occupation or control to a place outside of this.
- Accumulation
being brought onto the land
Case: Giles v Walker - not liable for anything that naturally accumulates
- Non-natural
some extraordinary use of the land.
The court can take into account the amount that is stored and the way that it was stored.
- Case: Rickards v Lothian
The use of water in domestic pipes was decided to be a natural use of land.
- Case: R v F
Non-natural can mean large quantities.
“a special use bringing with it an increased risk to others and not merely an ordinary use of the land.”
- Case: Cambridge Water
Storage of large amounts of chemicals is non-natural; creating local employment doesn’t make it natural
- Case: Levy v Mason Auto Parts
Storing in large quantities in a haphazard manner is non-natural.
- Likely to do mischief if it escapes
The damage must be foreseeable, not the escape.
- Case: Transco
ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape might be.
- Case: Hale v Jennings
The risk of injury is foreseeable and amounts to an escape. Only personal injury claim.
- Escape
Read v Lyons: escape from a place where the d has occupation or control to a place outside of this.
R v F: Foreseeability - Cambridge Water
it must be reasonably foreseeable
R v F: Foreseeability - Wagon Mound
Must not be too remote
R v F: Foreseeability - Stannard
Ward - damage caused by fire can be R v F, but this is rare, this is because:
- The ‘thing’ must escape, not the fire.
- Occasions when a fire is brought onto land may be limited to where it is intentional or negligent.
- Starting a fire may be an ordinary use.
R v F: Defences
Volenti.
Statutory authority.
Acts of a stranger whom D has no control.
Act of God; extreme weather.
Contributory negligence; can reduce damages owed.
R v F: Defences - Nicholas v Marsland
Acts of God; extreme weather ‘no human foresight can provider against’
R v F: Defences - Perry
Acts of a stranger
R v F: Remedies
C must show damage to, or destruction of, property in order to succeed in a claim.
The level of damages will be the cost or repair.
Vicarious Liability
Shifts the burden onto a third party, from the employee to their employer.
VL Salmond Test
“a master is not responsible for acts done by a servant unless in the course of employment.”
It is in the course of employment if it is:
- “a wrongful act authorised by the master, or
- A wrongful and unauthorised mode of doing an act authorised by the master.”
Requirements for VL
- The person who committed the tort is an employee.
2. They are acting in the course of their employment.
The Control Test [& Case]
The control the employer has over how they do their work, what was done and the way it was done.
The more control, the more likely to be an employee.
Mersey Docks; updated by Hawley v Luminar
Should ‘exercise so much control that they are effectively employed’
The Integration (organisation) Test [& Case]
Jordan and Harrison Ltd: if a person’s work is only an accessory they’re not an employee; their work must be fully integrated into the business.
The Economic Reality/Multiple Test [& Case]
The court weighs up these sets of factors:
Are they paid a regular salary or on commission?
Do they pay tax as an employee or self-employed?
Does the contract describe them as an employee?
Can they delegate work without permission?
Ready Mix Concrete: the drivers were independent contractors because they owned major assets and profit depending on their own decisions.
Acting in the course of employment
A question of fact. Recent judgments are in favour of claimants who have been injured.
- Against orders
- committing criminal acts
- outside employment
- negligent acts
- on a frolic of their own
- Against orders: Limpus
doing what they were employed to, though the way was against orders; liable.
- Against orders: Rose v Plenty
liable when acting against orders if it benefits the employer.
- Criminal acts: Lister
they may be liable if there is a ‘close connection’ between the act and the job.
- Criminal acts: CC of Merseyside Police
Police will not be liable due to loss allocation
- Criminal acts: Mattis v Pollock
was encouraged to use force due to the nature of the job.
- Criminal acts: Mohamud v Morrisons Supermarkets
At work, within working hours, a close connection; the employer is liable.
- Outside employment: Beard v London General Omnibus Co
Causing injury acting outside of employment, the employer isn’t liable.
- Negligent acts: Century Insurance
If they cause injury when doing a job badly, the employer can be liable.
- Frolic of his own
Doing something, or at a time, outside their time of work = not liable
- Frolic of his own: Hilton
away from the workplace, on unauthorised break, and causes injury or damage, employers NOT liable.
