Tort Law Flashcards
What is negligence?
It is based on a duty of care and has a 3 stage test
What is the first stage of negligence?
It must be proved that D owes the C a duty of care - In Donoghue v Stevenson, it was held that you owe a duty of care to anyone who is your neighbor; anyone directly affected by your actions
What are the two different ways to prove a duty of care for the first stage of negligence?
If there is an obvious duty of care, only Robinson needs to be applied, not the Caparo test
If the duty of care is not obvious, the Caparo v Dickman test must be applied
What is the Caparo v Dickman test?
a) Was the loss/damage reasonable foreseeable? (Kent v Griffiths)
b) Was there a relationship of close proximity; legal or physical? (Bourhill v Young)
c) Is it fair, just and reasonable to impose a duty of care? - based on public policy (Hill v Chief Constable)
What are the side rules for the Caparo test?
Police Officers - Robinson, owe a duty of care to avoid causing injury by positive act
Emergency worker - Osman v UK, they can be sued if risk of harm is substantially higher
Insurance - If D has insurance then it is usually fair
What is the second stage of negligence?
The D must have breached the duty to the C
What is a breach of duty and what comes under it?
Defined by Alderson B in Blythe v Birmingham as “Doing something a reasonable person would do or not doing something a reasonable person would do” and the D is judged by a reasonable person of a characteristic as well as risk factors which are taken into account
What are the three characteristics?
If D is an expert in a particular skill, they are judged by the standards of another expert (Bolam/Bolitho)(However, if another body of the medical profession agrees with the doctor, they are not negligent)
If D is inexperienced/learner, they will be judged by the standards of someone competent (Nettleship V Weston)
Children will be judged by the standards of another child (Mullins V Richard)
What are the three risk factors?
Magnitude of risk, Probability of harm, Cost and practicality of precautions
What is the magnitude of the risk?
The court needs to take into account the seriousness of the risk; the bigger the risk. the more precautions need to be put in place (Paris V Stepney council)
What is the probability of harm?
If there is a higher probability of harm, more care would need to be taken; a reasonable person need not take precautions against every small risks but against the big risks/ones more likely to occur (Bolton V Stone)
What is the cost and practicality of precautions?
If the cost of taking precautions to rewove the risk is too great, the D may not be in breach of duty (Latimer)
What is the side rule under stage 2 of negligence?
SIDE RULE: Social utility of the risk - If the risks have benefit for society, the D will not be in breach of duty (Watt v Herefordshire council)
What is the third stage of negligence?
The breach must cause the damage
What are factual and legal causation defined as?
Factual, “But for?” test (Barnett v Chelsea Hospital)
Legal, remoteness of the damage - reasonably foreseeable or too remote (Wagon Mound No. 1)
What is the side rule for the third stage of negligence?
SIDE RULE: D doesn’t need to foresee the manner in which the injury was caused as long as the injury type was foreseeable (Hughes v Lord Advocate)
What intervening act comes under the third stage of negligence?
Thin skull rule: you must take your C as you find them (Robinson V Post Office)(Smith v Leech Brain Co)
What is the first stage of psychiatric injury?
The C must be suffering from a recognised psychiatric injury, rather than just ordinary human emotion (Reilly v Merseyside Health Authority)
The C must show that this wads caused by a traumatic event or an “attack on the senses” (Sion v Hampstead Health Authority)
What is the second stage of psychiatric injury?
Was the C a primary or secondary victim?
What is a secondary victim and what comes under it?
Unwillling witnesses to the incident but not personally in danger of harm
Secondary victims must establish the “control mechanisms” as given by Alcock and updated in Paul, Polmear and Purchase
What is a primary victim and what comes under it?
Somebody who reasonable fears for their own safety or is within the zone of danger
Page v Smith established a 2 stage test: Must show that some type of physical injury was foreseeable, but not psychiatric
Don’t need to be a person of normal fortitude
What are all the control mechanisms?
Love: must be close ties of love and affection between the primary victim
Witness: must witness the traumatic incident or its immediate aftermath with your own unaided senses (McLoughlin v O’Brian)
Perceived: must have directly seen it; not heard through phone or seen on tv
Causation: Sufficient enough for there to be a link between incident and psychiatric injury with the incident as the cause
What are the side rules for the second stage of psychiatric injury?
Rescuers: If they are a primary victim, they can claim; if they are secondary, they must fulfill control mechanisms (Chadwick v British Transport)
Bystanders: cannot claim unless they fulfill control mechanisms (McFarlane)
What is nuisance and what comes under it?
The unlawful/unreasonable interference with a persons use or enjoyment of land
The C must demonstrate a legal interest in the land affected to claim (Hunter v Canary Wharf)
Lord Goff in Cambridge Water: the fact that the D has taken all reasonable steps will not exonerate him
What is the first stage of nuisance?
Location: the locality of the area must be considered (Leeman V Montague)(A residential area will expect less noise whilst a commercial area with expect more)
What is the side rule for the first stage of nuisance?
Damage to land: If the nuisance causes physical damage, the location is irrelevant (St Helens Smelting v Tipping)
What is the second stage of nuisance?
Duration: The more long lasting the nuisance is, the more likely it is to be a nuisance (Cunard v Antifyre)
What are the two side rules for the second stage of nuisance?
Time of day: even if interference is short, it may be unreasonable due to time of day (De Keysers Royal Hotel)
Damage to land: a short duration of time may still be a nuisance if it causes damge (Crown River Cruises v Kimbolton)
What is the third stage of nuisance?
Motive and malice: If the activity of the D is motivated by malice, it is likely to be unreasonable (Christie v Davey)
What is the side rule for the third stage of nuisance?
Interference with recreational activities: if the claim is for interreference with recreational activities, it will likely fail (Hunter v Canary Wharf)
What are the defences for nuisance?
Statutory authority, planning permission, contributory negligence, prescription, volenti non fit injuria
What is the defence of statutory authority for nuisance?
Where an Act of Parliament gives permission for the nuisance (Allen v Gulf Oil)
What is the defence of planning permission for nuisance?
New builds mean the character of a location could change so the interference could be reasonable/unreasonable (Gillingham Council v Medway)
What is the defence of prescription for nuisance?
If the C had tolerated the nuisance for a substantial amount of time (e.g 20 years) then there is no nuisance
What is the defence of volenti-non-injuria for nuisance?
Where the C explicitly or impliedly consents to the nuisance
What is contributory negligence for nuisance?
Law Reform (Contributory Negligence) Act 1945; C’s compensation is decreased by the same amount in which they contributed
What are the remedies available for nuisance?
Abatement, Injunction, Compensation
What is the remedy of abatement for nuisance?
A form of self help - a C can take reasonable steps to lessen the nuisance
What is the remedy of injunctions for nuisance?
An equitable remedy (only given by courts if fair and just to do so) and the court may refuse if not in the public interest and award damages instead (Miller v Jackson)
Injunctions can be tailored to meet the exact need (Kennaway v Thompson)
What is the remedy of damages for nuisance?
Compensation may be awarded where the damage done by the nuisance is quantifiable (an exact amount can be calculated)
What is Rylands v Fletcher and what come under it?
Where the D brings something onto their land and stores it there; it escapes and causes damage to claimants land - this is a strict liability crime with 4 stages
What is the first stage of Rylands v Fletcher?
A non-natural use of land; where the D brings something onto the land that was not naturally there due to what it is or its volume/quantity - (Transco) “extraordinary and unusual” or “special use bringing increased danger to others”
What are some examples of a non natural use of land?
Oil, chemicals, poison, explosives, water, animals
What is the second stage of Rylands v Fletcher?
An escape of the thing brought onto land; must be from a place that D had occupation of to a place D had no control over (Read v Lyons) - the thing itself must escape
What is the third stage of Rylands v Fletcher?
Damage caused by the escape; in Rylands, Blackburn J said “D will be liable for all damage which is a natural consequence of its escape”
What is the fourth stage if Rylands v Fletcher?
The damage is of a foreseeable type; must not be too remote (Cambridge Waters) if it can’t be predicted, it cant be prevented
What are the defences for Rylands v Fletcher?
Acts of a third party, Acts of God, Statutory authority, Acts of the claimant, Consent
What is Acts of God for Rylands v Fletcher?
The escape is due to natural causes that no human foresight could have guarded against (Nichols v Marsland)/(Greenock) Rare defence to get, typically for natural disasters
What are acts of third parties for Rylands v Fletcher?
If a third party caused an escape, the D will not be held responsible if they could not have foreseen it and taken reasonable steps (Rickards v Lothian)
What is statutory authority for Rylands v Fletcher?
If the escape is caused by something the D is legally obliged to do
What is acts of the claimant for Rylands v Fletcher?
Where the damage is due to the fault of the C
What is consent for Rylands v Fletcher?
Where the C expressly or impliedly consents to accumulating the thing
What are the two types of economic loss?
Consequential and Pure
What is pure economic loss?
When the loss is not linked to any physical or property damage and cannot be claimed for (Spartan Steel v Martin)
What is consequential economic loss?
When the loss of money is linked to physical or property damage and can be claimed for in tort law (Spartan Steel v Martin)
What is negligent misstatement?
When the D makes a statement which the C relies on and loses money from as a result.
What case establishes the stages of negligent misstatement and what comes under it?
Hedley Byrne v Heller sets out a 4 stage test and if proved give rise to a special relationship (Caparo v Dickman)
What is the first stage of negligent misstatement?
The D possesses a special skill relating to the advice given - based on the skill and judgement of the D and the reliance placed upon it
What is the side rule for the first stage of negligent misstatement?
Social Situations: D will not generally be liable in social situations but it was held that they might have a duty of care if they possess relevant expertise (Chaudry v Prabhaker)
What is the second stage of negligent misstatement?
D knows that it is highly likely that C will rely on the advice given (Mutual Life v Evatt) A duty is established when the D was in the business of giving the advice or has knowledge of the field/special skill
What is the third stage of negligent misstatement?
The C relies on the advice and suffers financial loss
What is the fourth stage of negligent misstatement?
It must be reasonable for the C to rely on the advice; if there is sufficient proximity then it is more reasonable (Caparo V Dickman)/ If there is a position of authority, it is also more reasonable (White v Jones)
What is the side rule for the fourth stage of negligent misstatement?
Voluntary assumption of duty: If no one asked for the advice and the D gives it instead of staying silent, they support the duty of care (Hedley Byrne v Heller)
What is occupiers liability?
When the C goes onto the D’s property and gets injured whilst there
What are the two acts that come under occupiers liability?
Lawful Visitors - Occupiers Liability Act 1957
Trespassers - Occupiers Liability Act 1984
What is the first part of OLA 1957?
s2 (1) - the occupier of premises owes a common duty of care to visitors (Define three terms)
What is the definition of occupier?
Lord Denning, sufficient control test: Wherever a person has a sufficient degree of control over premises that they should realise any failure to take care may result in injury
What case comes under definition of occupier and what does it say?
Wheat v Lacon - There can be multiple occupiers of the same premises
What is the definition of visitor?
Anyone who has express or implied permission to be on the land
What is the definition of premises?
s.1(3)(a) - any fixed or moveable structure, including any vessel, vehicle or aircraft
What is the definition of a common duty of care?
s.2(2) - occupier has duty to take reasonable steps to ensure visitor will be safe for reason they are there
What case comes under a common duty of care and what does it say?
Darby v National Trust - Injury must be due to the state of the premises, not the actions of the visitor
What is a breach under OLA 1957?
The occupier must act as a reasonable person would have done (same as negligence)
What case comes under breach and what does it say (Occupiers)?
The Calgarth - The duty of care is only limited to the purpose for which the visitor has permission to be there
What are the side rules under breach (Occupiers)?
Nature of the visitor -Children, experts and independant contractors
What is the side rule of children under breach (Occupiers)?
s.2(3)(a) - occupier must be prepared for children to be less careful so must take more care, especially in case of allurements (Glasgow Corp v Taylor) + very young children should be under parent supervision, occupier may not be liable (Phipps v Rochester Corporation)
What is the side rule of experts under breach (Occupiers)?
s.2(3)(b) - If the risk in the nature of their calling, an occupier may expect them to guard against them (Role v Nathans)
What is the side rule of independant contractors under breach?
s.2(4)(b) - the occupier will not be liable if independant contracter was negligent if: it was reasonable to trust them and if occupier took reasonable steps to ensure work was done BUT if work was complex, occupier has to do less (Haseldine v Daw)
What are the two ways an occupier can discharge their duty?
Warning signs and consent
What is consent under the occupiers ability to discharge duty?
The occupier will ot be liable if the visitor willingly consented to risks
What comes under OLA 1984?
British Board V Herrington states an occupier owes a common duty of humanity to trespassers - 1957 OLA states this means they don’t set traps or try to injure them
What are warning signs under the occupiers ability to discharge duty (1957 Act)?
Warning signs must be sufficient enough to keep visitor safe - Cotton v Derbyshire Councl held that there is no obligation to have a warning sign if danger is clear
What is the first part
of OLA 1984?
s.1(1) states the injury must be due to the state of the premises
What is the second stage of OLA 1984?
s.1(3) states an occupier owes duty if (subjective):
(a) they are aware of the danger or have grounds to believe it exists
(b) knows or have grounds to believe someone is in vicinity of danger
(c) risk is serious enough that they should offer some protection of it + cost/practicality of taking action
What is breach under OLA 1984?
Occupier must take reasonable steps so that trespasser doesn’t suffer personal injury
What are warning signs under OLA 1984?
s.1(5) Occupiers can discharge their duty by taking reasonable steps to give warning of why a trespasser shouldn’t come onto property but must consider more steps should be taken in case of children
What is vicarious liability?
Where it must be decided if the employer is responsible for the employees negligence
What is the first stage of vicarious liability?
Must be decided if the worker is in traditional or non-traditional employment
What test comes under the first stage of vicarious liability?
Multiple test (Ready Mix Concrete v Minister of Pensions)
What are the factors under the multiple test and what do they decide?
- If there is a wage being paid, tax or N.I
- Who provides the tools for the job
- If orders have to he obeyed
- How much control over work done
- Acceptance of business risk
- Power to hire/fire
These factors decide if they are employee or self employed
In doubtful cases, what test is used under vicarious liability?
Akin to employment test (Christian Brothers)
What are the factors under the akin to employment test and what do they decide?
- Employer is more likely to have insurance
- Act is committed on behalf of the employer
- Employee’s activity is part of employer’s business activity
- Employee is under the control of the employer
If someone is obviously an independent contractor under vicarious liability, what is said?
They are an independent contractor and therefore the D will not be vicariously liable (Barclays Bank v Various claimants)
When will an employer still be liable under vicarious liability + cases?
Acting excessively (Vasey)
Negligently (Centuries Insurance)
In unauthorised way (Rose v Plenty)
A criminal act (Morrisons v Mohamud)
Abused students (Lister v Hesley Hall)
What is the second stage of vicarious liability?
Were the employees acts closely connected to what they were authorised to do, it may be fairly and properly regarded as being in the course of their employment
When will an employer not be liable under vicarious liability + cases?
Doing something unrelated to job (Heasemans v Clarity Clothing)
Doing a frolic of their own (Storey v Ashton)
Have a personal vendetta (Morrisons v Various claimants)
What is the side rule under the second stage of vicarious liability?
Travelling to and from work - normally not in course of employment unless the employer was paying to travel or being given travel expenses (Smith v Stages)
