Tort Law

Question 1

What does occupiers liability act 1957 deal with

Answer 1

Duties owed to lawful visitors

Question 2

What does occupiers liability act 1984 deal with

Answer 2

Duties owed to others ie trespassers

Question 3

Pre 1972 there was no duty owed to child trespassers … case ?

Answer 3

Addie v dumbereck
Lots of machinery and knew children trespassed … done nothing to keep them out

Question 4

1972 -84 there was the duty of ?

Answer 4

Common humanity
Herrington v BRB
Trainline had no fences - child electrocuted and died

Question 5

Who is an occupier ? Wheat v e lacon 1966 says

Answer 5

Test is who had control
In case it was pub landlord and brewery that owned pub
Husband died after falling down stairs without bulb - not held to be enough tho

Question 6

Fat from absolute duty tho as many cases where c injured but no breach ie

Answer 6

Kiapasha v laverton
C broke ankle after slipping on floor in takeaway
Raining and many customers
Precautions taken ie non slip floor, door mat , mopped 7 x but cannot mop Whne so many customers

Lady hale- no beach … question of what is reasonable to expect

Question 7

Warning cases

Answer 7

English heritage v Taylor = c fell from platform with no warnings at castle … sheer drop
Held : duty breached but 50% cn as obvious danger

Question 8

Independent contractors

Answer 8

William v west herts hospitals trust 2002
Splat wall case
C Injured when jumping from trampoline onto Velcro wall
Wall operated by contractor at hospital charity event run by defendant hospital d

Held c could not recover against the hospital ; hospital had taken reasonable steps in selecting contractor
But also said d was under a duty to check insurance - no breach of this as d had gone far enough to check insurance

Question 9

Duty to trespasser only owed if

Answer 9

1) he is aware of the danger or has reasonable grounds to believe that it exists and
2) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger and
3) risk is one which in all the circumstances of the case, he may reasonably be expected to offer the other some protection

Question 10

Tomlinson v congleton bourogh council 2003
Duty to trespasser case

Answer 10

D owned old sand quary and land which was turned into country park and lake
Notices erected banning swimming as dangerous
C 18 years old visited and dived from beach, hit head and left severely paralysed
D had report by council which proposed closing beaches to prevent swimming
Initially claimed as lawful visitor but then accepted trespasser when swimming

Held - no risk which gave rise to duty 1(3) a - 1984 act and risk was obvious so fails at first step no danger

Question 11

Brown v south west lakes trust 2022

Answer 11

Accident, victim driving car along road next to reservoir in Cornwall , car left road, went through fence into reservoir and drowned
Family claimed that owner of reservoir was in breach of 1984 act … argued Tomlinson was distinguished because no voluntary act , v was unintentional trespasser , d should have provided more secure fence

Struck out as no reasonable cause of Acton - clearly no danger as to state of premises

Claim against highway authority allowed to proceed though as failed to fence securely is a prospect

Question 12

Negligence step process

Answer 12

1) is there a duty of care
2) has it been breached
3) did breach cause loss or damage to c which is actionable
4) is loss or damage to remote ?
5) satisfy all then cause of action subject to defences

Question 13

Dryden v matthey plc 2018

Answer 13

Exposed to platinum salts that resulted in them developing a sensitivity to platinum which had no physical effect, but prevented them from working in chemical plants as doing so would result in full blown platinum salt allergy that would have physical effect

C claimed for loss of earnings and and earning capacity against d employers

Held - allergy amounted to actionable personal injury as it changed their physical capacity to enjoy ordinary life which prior to exposure had involved working with platinum salts

Question 14

FB v Rana

Answer 14

13 month old developed meningitis combined with other features and suffered irreversible brain damage

Held - doctor had failed to take adequate history and failed to conduct adequate examination
Also standard of care by senior house offer expected to be same as more senior doctor

Question 15

Robinson v chief Constable of West Yorkshire police

Answer 15

Duty of care owed by police to prevent foreseeable injury to those in the vicinity

Question 16

Jackson v Murray

Answer 16

13 year old girl stepped out from behind bus into road
D was driving car and crashed into her

Supreme Court - d not slow down when saw bus
Girl stepped out without looking
D negligent but girl 50% contributory negligence

Question 17

Wagon v mound

Answer 17

Type of damage must be reasonably foreseeable

Question 18

Intervening act by third party cases relieving liability

Answer 18

Reckless conduct - Wright v lodge
Criminal acts
Mere negligence not enough , must be gross - Webb v Barclays Bank

Question 19

Unreasonable conduct by claimant to break chain has to be …

Answer 19

McKew unreasonable
McKew v Holland - common sense gone out the window

Question 20

Supervening event may break chain

Answer 20

Baker v Willoughby

Question 21

C damage falls outside scope of d duty = break chain

Answer 21

Meadows v Kahn

Question 22

Thin skull rule -

Answer 22

As long as some damage of same type suffered by c is reasonably foreseeable, d does not need to foresee its extent

Question 23

Cunningham v Rochdale

Answer 23

Not probable so but for failed

Question 24

Bonnington v wardlaw
Material contribution case

Answer 24

Silica dust causing pneumoconiosis
Condition caused by dust but how can only be guilty dust - in combination with innocent dust

Question 25

Divisible harm cases

Answer 25

Holtby
Rahman v arearose

Question 26

Indivisible harm

Answer 26

Bailey v mod
Williams v Bermuda hospitals

Question 27

Increase in risk test
Cases ?

Answer 27

McGhee
Fairchild
Barker v corus
Wilshere

Question 28

Hedley v Byrne

Answer 28

Negligent misstatements causing pure economic loss
If d has objectively assumed responsibility (assessed by ref to professional relationship and Ds conduct ) and corresponding reliance by c then use Byrne test
Hedley is relevant where representor is not contracting party

Use caparo if d not identifiable

Question 29

Distinction between first party insurance eg fire, life and liability insurance

Answer 29

First party insurance - party pays to ensure their own loss

Liability insurance - party pays to insure in respect of their legal liabilities to third parties

Question 30

Peter cane - a fault with insurance system

Answer 30

Compulsory liability insurance for road accidents creates a system where there is damage to drivers , vehicles, passengers and other road users as a result of provable negligence of another , compensation will be paid if d was insured

But if victim was entirely responsible then only has recourse under first party insurance

Question 31

Vast majority of cases are settled

Answer 31

86% of personal injury cases settle without proceedings being issued
11% settle after proceedings issued but before trial date
1% settled at door of court or went to trial

Question 32

Costs in tort law

Answer 32

Legal aid for personal injury claims reduced in 1995 and removed in 2001 for all except medical negligence; this went in 2012

Now personal injury either funded by before the event insurance or conditional fee agreements ie no win no fee

Question 33

Arguments against Tort system

Answer 33

1) expensive to run - 47% used up in operation of system
Accident victims only received 53%
Operational costs include - lawyers, court costs, medical costs, insurance company costs and benefits

Compares with approx 10% spent in costs in New Zealand no fault scheme which replaced tort

2) big gaps in coverage ie where claimant cannot prove fault of another who is insured or has sufficient resources to pay …
No witnesses - risk of insufficient evidence
Where only c at fault
Where accident not caused by anyone’s negligence

3) tortfeasor hardly ever pays personally , yet claimants pay through contributory negligence eg Jackson v Murray

Any deterrent effect that tort liability has is weakened by d knowing liability will be covered by insurance

Regressive distribution - people pay into liability insurance pool according to risk they create, but take out according to existing level of wealth

Question 34

Alternatives to tort law
No fault scheme

Answer 34

No fault scheme in New Zealand
State run scheme which provides compensation for victims of accidents irrespective of fault - periodical payments

Funding - work accidents : funded by levy on employers
Road accidents : funded by levy on patrol and vehicle licenses
Other accidents

Compensation covers only 80% of lost earnings
Administrative costs only 10% not 47%

Question 35

Pearson commission proposed alternative

Answer 35

Modifications to tort
No fault scheme for road accidents funded by levy on patrol , but at lower level of compensation claims with tort for high level

Question 36

Nhs redress scheme alternative

Answer 36

Rejected no fault scheme because of cost ie if tort level of compensation kept same then overall cost would multiply ; if reduced then claimants worse off

Nhs redress scheme for patients harmed by seriously substandard care - claimants can sue in tort instead but would waive right if scheme package accepted

Put into legislative form but not implemented

Question 37

All about money but no apology

Answer 37

Oconnor case 2005 - legal system not conductive to get apology

Question 38

Compensatory damages

Answer 38

To put the claimant back in position as far as possible as if tort not committed

Question 39

Compensatory culture ?

Answer 39

Claims reducing though since 2013 now half what it was in 2013 but half maybe because of pandemic

96% of people believe that we are more likely to seek damages today than we were a decade ago
However only 25% of those having faced personal injury said they had claimed with top reason for not claiming compensation being “ i did not think the accident or illness/ disease was bad enough to warrant a claim”

Whiplash study= almost 40% have not claimed compensation after suffering whiplash …. And 80% of sufferers either report symptoms accurately or underplay

Question 40

List of duties of care

Answer 40

• Motorists owe duty of care to other road users
• doctors owe duty of care to patients
• police owe duty to prevent forceable harm to those in the vicinity

Question 41

Bolam test for professional negligence

Answer 41

If what d did is supported by reasonable body of opinion within the relevant specialism of the profession then d will have discharged duty of care

Question 42

Bolam does not apply if

Answer 42

Bolitho- d expert opinion is illogical or not based on sound science

Montgomery- If d wrongdoing relates to a failure to inform about options for treatment ie advisory duty - fail to inform of 9-10% risk

Question 43

Damages main remedy

Answer 43

100% principle ie full compensation but speculate about the future means most damages either under or other compensate

Question 44

Psychiatric harm

Answer 44

Alcock 1991- primary victim= involved either mediately immediately as a participant
Secondary victim = spectators or bystanders

Secondary victims control factors
1) must be close tie of love and affection; spouse and parent child presumed ; rest have to be proved
2) must be proximate in time and space
3) must be caused by shock

C must show reasonable fortitude

Liverpool hospital v ronayne- not caused by shock

Taylor 2013- no duty where mother died due to accident 3 weeks prior - not proximate

Question 45

Page v smith 1995
Primary victim

Answer 45

If physical harm foreseeable to pv then psychiatric harm not need to be foreseeable

Question 46

White v chief Constable South Yorkshire

Answer 46

Rescuers need to be in zone of physical danger to be pv

Question 47

Sherratt v chief Manchester police 2019

Answer 47

Police will only owe duty of care if there is a voluntary assumption of responsibility

Question 48

Section 1 1957

Answer 48

Occupier can exclude or restrict liability by agreement

Question 49

Arguments for tort

Answer 49

Corrective justice - d wrong requires compensation

Dynamic development ie recognising new harms