Tort law Flashcards

Question

What is the relevance of powers or duties derived from statutes in determining the liability of public bodies?

Answer 1

When looking at positive acts and omissions, the liability of a public authority is in principle the same as that of a private person, but may be restricted by statutory powers or duties. An act that would normally be considered a breach of duty cannot be if it is specifically authorized by an Act of Parliament. This principle upholds the principle of parliamentary sovereignty.

Answer 2

Some policy considerations when imposing a duty of care on public bodies include: a) The fact that damages paid in successful claims against public bodies are often ultimately borne by taxpayers, which might discourage finding a duty of care in new cases. b) The imposition of a duty might lead to restricted operation of public services due to fear of litigation (referred to as ‘defensive practices’). An example is the concern that police adopting defensive practices may result in a waste of resources and inefficient use of manpower.

Answer 3

Some examples of duties imposed on public bodies include: a) In Phelps v Hillingdon London Borough, a local authority was held to owe a duty of care to provide education appropriate to a child’s needs after misdiagnosing the child’s dyslexia. b) In Jebson v Ministry of Defence, a camp commander was found to owe a duty of care to ensure the safety of a drunk soldier returning from a night out organized by the commander.

Answer 4

The Mulcahy v Ministry of Defence case established that the army does not owe a duty to soldiers in battle conditions during active combat.

Answer 5

When ascertaining whether a duty of care is owed, the same principles apply to public bodies as they do to individuals. However, even if those principles point towards the imposition of a duty of care, it will not be imposed if it would be incompatible with the intentions of the statutory scheme under which the public body operates

Answer 6

No, a duty of care will not automatically be imposed on a public body in relation to an omission simply because the public body has a statutory duty or power to act. The intentions of the statutory scheme under which the public body operates must also be considered.

Answer 7

When considering the intentions of a statutory scheme under which a public body operates, the court may conclude that difficult decisions about resourcing or other ‘policy’ matters were not intended to give rise to a common law duty of care in negligence.

Answer 8

…to apply the same principles that are applicable to private individuals

Answer 9

(i) establishing the standard of care expected by the defendant; and (ii) examining whether the defendant has fallen below that standard of care

Answer 10

The general rule is that a defendant must behave as a reasonable person would in all the circumstances.

Answer 11

Where the act being carried out is one which would ordinarily be carried out by a professional, the standard is based on what the reasonable professional in that field would have done. No allowance will be made for a defendant being junior / inexperienced in a particular field.

Answer 12

Children need only reach the standard of a reasonable child of their age.

Answer 13

The standard required may be adjusted in certain circumstances to take into account sudden illness / disability which the defendant was reasonably unaware of

Answer 14

The court consider all the circumstances of the case including: The likelihood of harm The magnitude of harm The practicality of precautions Any benefit of the defendant’s conduct Common practice The ‘state of the art’ at the time of breach Special rules in relation to sport

Answer 15

The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach. Unforeseeable risks cannot be anticipated and, therefore, failing to guard against them will not be regarded as negligence.

Answer 16

nothing short of reckless disregard for the claimant’s safety would constitute a breach

Answer 17

The claimant must prove breach on the balance of probabilities.

Answer 18

he claimant may be helped by relying on a relevant criminal conviction or in very limited circumstances, by the maxim res ipsa loquitur (the facts speak for themselves).

Answer 19

the starting point for determining whether the defendant has fallen below this standard is the Bolam Test. * Bolam established that professionals are not guilty of negligence if they acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art. * However, the court can find a professional negligent if it concludes that the ‘practice accepted as proper’ does not withstand logical analysis. * Knowledge can change quickly in professional areas, and the court must determine how up to date a defendant should be. * Medical professionals are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

Answer 20

Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments.

Answer 21

The court held that the three conditions for the application of the maxim ‘res ipsa loquitur’ are: * The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible. * The accident must be such as would not normally happen without negligence. * The cause of the accident is unknown to the claimant – so that the claimant has no direct evidence of any failure by the defendant to exercise reasonable care.

Answer 22

The effect of s 11 of the Civil Evidence Act 1968 is that a defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that offence. This statutory provision can help a claimant to prove that a defendant has fallen below a reasonable standard of care where the offence of which the defendant has been convicted involved careless conduct. The claimant can rely upon the conviction as evidence that this careless conduct did take place. The claimant does not need to prove that behaviour again in the civil proceedings. However, this provision will not always be of assistance to the claimant. For example, if a driver is convicted of driving without insurance, this does not provide the claimant with any evidence that the defendant failed to drive carefully. The criminal conviction is not relevant to the claim in negligence.

Answer 23

‘but for’ test

Answer 24

In clinical negligence, where the breach is a failure to advise on risk, the ‘but for’ test can be satisfied if the claimant can prove that they would not have had the treatment or would have deferred the treatment had they been told of the risk.

Answer 25

When this happens, if the multiple causes operated together to cause the claimant’s loss, the courts might depart from the ‘but for’ test and apply the material contribution test. In industrial disease single agency cases (namely mesothelioma and lung cancer caused by asbestos), the courts might depart from the ‘but for’ test and apply the material increase in risk test. Loss of chance can be argued where the loss is pure economic loss.

Answer 26

The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss.

Answer 27

The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk.

Answer 28

Where there are multiple tortious factors which are known to have caused part of the loss, the courts apportion liability between the defendants in a way that produces a practical result, providing compensation to the claimant while recognising the respective fault of the defendants. Where there is more than one defendant, each of whom passes the ‘but for’ test for distinct separate losses, but one of their actions comes after the other, consider multiple sufficient causes. The later action may be non-tortious eg a natural event, but is the factual cause of the later loss. If the second defendant has not caused any additional damage to the claimant, they will not be liable. If the second event is tortious, the first defendant is liable for the original damage past the point of the second event. The second defendant is liable for any additional damage. If the second event is naturally occurring, the defendant is liable for damage only up to the natural event.

Answer 29

There are three types of novus actus interveniens: acts of God, acts of third parties and acts of claimant. Acts of God break the chain of causation if they are exceptional natural events. Acts of third parties break the chain of causation if they are highly unforeseeable. If the act of third party is medical treatment, this will only break the chain of causation if it is so gross and egregious as to be unforeseeable. Acts of claimant break the chain of causation if they are highly unreasonable. It is rare for the claimant’s unreasonable behavior to break the chain of causation as this would normally be dealt with under the defence of contributory negligence.

Answer 30

The ‘similar in type’ rule: provided the type of damage was reasonably foreseeable, the defendant is liable, even if the precise way in which it occurred was not foreseeable.

Answer 31

The ‘egg- shell skull’ rule: provided the type of harm was reasonably foreseeable, the defendant is liable for the full extent of the harm, even if the precise extent of the damage was not foreseeable.

Answer 32

The primary liability of employers at common law refers to the employer’s fault and breach of duty of care owed to an employee. It is distinct from vicarious (secondary) liability, where the employer is held responsible for the faults of their employees.

Answer 33

Employers’ primary liability refers to a situation where an employee sues their employer for breaching their duty of care. The claimant is always an employee of the defendant in this case. On the other hand, vicarious liability occurs when the claimant sues an employer (not necessarily their employer) for a tort committed by one of the employer’s employees. The claimant may or may not be an employee of the defendant employer, but what matters is that the person who committed the tort is an employee of the defendant employer.

Answer 34

When determining if an employer is vicariously liable for the torts committed by an employee, factors such as the extent of deviation from the employment route, whether the travel was during working time, and the actual purpose of the journey are considered. The purpose and control exercised by the employer over the employee’s actions are also important factors.

Answer 35

The duty of care imposed on employers includes providing safe and competent employees, safe and proper plant and equipment, a safe place of work/premises, and safe systems of work with adequate supervision and instruction.

Answer 36

In relation to consent, if an employee consents to the risk, then his employer may have a good defence. However, judges are very skeptical of this defence in the employment context and it can only be successfully invoked in extreme circumstances where ‘there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss’.

Answer 37

No, a customer cannot sue a supermarket in employers’ primary liability because they are not an employee of the supermarket. Employers’ primary liability claims involve employees suing their employers for breaching their duty of care.

Answer 38

The duty of care imposed on employers is considered personal and non-delegable, meaning that regardless of who the employer uses to carry out tasks, the ultimate responsibility for the safety of the employee rests with the employer. While the employer can delegate the performance of the duty, they cannot delegate liability for its breach.

Answer 39

In vicarious liability situations, an employer may be entitled to seek an indemnity from their employee if they are forced to pay damages in respect of the employee’s tort. This means that although the victim claims against the employer, the employer may be able to claim something back from the employee.

Answer 40

An example of contributory negligence in an employment context is when a claimant employee fails to take reasonable care of their own safety, which contributes to the loss suffered. For example, if a claimant fails to wear safety goggles provided by their employer, they may be held partially to blame for their injuries.

Answer 41

The test for determining if there is a relationship akin to employment for the purpose of establishing vicarious liability is whether the relationship is sufficiently analogous to employment to make it fair, just, and reasonable to impose vicarious liability. Factors such as the employer’s means to compensate the claimant, the activity being undertaken on the employer’s behalf, the integral nature of the activity to the employer’s business, the creation of the risk by the employer, and the degree of control over the tortfeasor are considered.

Answer 42

The duty of care owed by employers to their employees is to take reasonable precautions to ensure their safety.

Answer 43

The economic reality test is used to determine whether a worker is an employee for the purposes of tort law. It helps establish employment status, which is relevant in determining whether a claimant is able to bring a claim in employers’ primary liability. The test considers the economic relationship between the worker and the employer to determine if the worker should be classified as an employee.

Answer 44

A contract of service refers to an employer/employee relationship where services are provided personally by the employee. A contract for services refers to an independent contractor relationship where services are provided by an independent contractor, not in an employer/employee relationship.

Answer 45

To establish vicarious liability, three elements must be satisfied: a) A tort has been committed by the employee; b) The employee is in an employment relationship with the defendant or in a relationship akin to employment; c) The tort was committed in the course of the employee’s employment/quasi-employment.

Answer 46

The close connection test is used to determine whether there is a close connection between the employee’s wrongful act (the tort) and their employment. It is important to establish this connection to prove that the tort was committed in the course of employment.

Answer 47

When determining if someone is an employee for the purposes of tort law, factors such as remuneration in exchange for personal service, mutuality of obligations, and control exercised by the employer over the worker are considered. Other factors include the provision of tools and equipment by the employer, tax/PAYE treatment, integration into the organization, and receiving benefits such as holiday pay and sick pay.

Answer 48

The general rule is that the employer will remain vicariously liable when an employer lends an employee to another employer. It is difficult for the lending employer to rebut this presumption. However, in rare cases, both the lending employer and the hirer may be vicariously liable if they have an equal measure of control over the tortfeasor.

Answer 49

An example of vicarious liability in an employment context is when an employer is held liable for the torts committed by their employee. For instance, if an employee sexually abuses a child while working at a children’s home, the employer may be held vicariously liable for the employee’s actions.

Answer 50

The rebuttable presumption in determining vicarious liability is that the original employer will be held vicariously liable. However, this presumption can be rebutted. Dual liability, where both employers are held vicariously liable, is rare as it is uncommon for two employers to have the same level of control over an employee at the same time.

Answer 51

Where to employers have the same standard of control of D so both are vicariously liable.

Answer 52

The Court went on to say that in deciding this threshold question the court should consider: * the nature and extent of the work done by the employee (eg was the workload obviously too demanding in terms of type or amount; was there a high degree of absenteeism or sickness in the relevant department, etc); and * signs from the employee themselves. The Court stated that an employer is generally entitled to assume an employee was up to the normal pressures of the job and was entitled to take what an employee told it at face value.

Answer 53

The main defences raised by an employer are likely to be consent (voluntary assumption of risk) and contributory negligence.

Answer 54

* The worker must be an employee (or in a relationship akin to employment). * The employee must have committed a tort. * The employee’s tort must have been committed in the course of his employment.

Answer 55

The Supreme Court in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 provided guidance on the Lister principle. First, the court must ask what function or field of activities has been entrusted by the employer to the employee (ie what was the nature of their job). Secondly, the court must decide whether there was a sufficient connection between the position in which they were employed and their wrongful conduct to make it fair and just for the employer to be held liable.

Answer 56

The owners and managers of premises are considered occupiers and they both owe a duty of care to ensure the safety of visitors on the premises.

Answer 57

The Occupiers’ Liability Act 1984 governs the duty owed by occupiers to non-visitors, specifically trespassers. It aims to establish the standard of care expected of occupiers to ensure that entrants do not suffer injury on the premises due to the danger concerned.

Answer 58

Child visitors are owed a higher standard of care under the Occupiers’ Liability Act 1957. Section 2(3)(a) states that an occupier must be prepared for children to be less careful than adults. This means that more may be required of an occupier in relation to child visitors to keep them reasonably safe.

Answer 59

Only personal injury is recoverable under the Occupiers’ Liability Act 1984, not property damage.

Answer 60

Liability of an occupier depends on factors such as control over the premises, awareness of potential dangers, and the degree of care exercised. In some cases, liability may be limited if the accident was caused by a third party or if there was no reason to consider a certain condition as dangerous before the accident.

Answer 61

The standard of care for an occupier’s duty to visitors is generally reasonable care. However, a higher standard of care is owed to children and visitors with particular vulnerabilities, while a lower standard of care is owed to persons entering in the exercise of a calling.

Answer 62

An example that illustrates the higher standard of care owed to child visitors is the case of Taylor v Glasgow City Council [1922] 1 AC 44. In this case, a child died after eating poisonous berries from a bush on the defendant’s premises. The court held that the bush was an allurement to children and should have been fenced off.

Answer 63

To analyze breach of duty under the Occupiers’ Liability Act 1984, the courts might consider negligence breach factors, age of claimant, nature of danger, nature of premises, purpose of claimant, foreseeability of trespassing, and whether a sufficient warning of the danger was given under section 1(5) of the Act.

Answer 64

Lord Denning categorized occupiers into four categories: (1) If the landlord does not live on the property, the tenant is the occupier; (2) If the landlord retains some part of the premises, such as common areas like stairways, they are the occupier of those parts; (3) If the landlord issues a license, they remain an occupier; and (4) If the occupier employs an independent contractor, they generally remain responsible.

Answer 65

The defences available under the Occupiers’ Liability Act 1984 are consent, contributory negligence, and illegality.

Answer 66

Persons entering premises in the exercise of their calling (to exercise their skills) are owed a lower standard of care under the Occupiers’ Liability Act 1957. Section 2(3)(b) states that an occupier can reasonably expect a visitor coming onto their premises to exercise their skills and appreciate and guard against any risks ordinarily incidental to their job.

Answer 67

Control is a significant factor in determining who is an occupier. The person in actual possession of the premises, whether they are the owner or not, and who has immediate supervision and control over the premises, is considered the occupier

Answer 68

An occupier will not be in breach of duty if they warned the claimant of the danger and the warning was enough to enable the visitor to be reasonably safe. Additionally, an occupier will not be in breach if, where building, construction, repair, or renovation is carried out by an independent contractor, they acted reasonably in entrusting the work to the independent contractor.

Answer 69

Under section 2(1) of the OLA 1957, an occupier of premises owes a duty of care to their visitors. The duty is to take such care as is reasonable in all the circumstances to ensure that the visitor will be reasonably safe in using the premises for the purposes for which they were permitted by the occupier to be there.

Answer 70

Under the Occupiers’ Liability Act 1984, an occupier cannot, by contract, exclude or restrict the common duty of care owed to a third party. This means that the duty of care owed to strangers (non-visitors) cannot be restricted or excluded by a contract. However, the provisions of the Unfair Contract Terms Act 1977 (UCTA 1977) and the Consumer Rights Act 2015 (CRA 2015) do not apply to the Occupiers’ Liability Act 1984.

Answer 71

Yes, there can be multiple occupiers of the same premises. Different occupiers may have responsibility for different parts of the premises or different dangers. For example, in the case of Bailey v Armes (1999), the Court of Appeal referred to Salmond on the Law of Torts (10th ed.) for an explanation of the sufficient degree of control required for occupancy.

Answer 72

A warning notice is relevant to breach and whether the defendant has discharged their duty of care, while an exclusion clause operates as a potential defense once a claim has been established against the occupier. Exclusion clauses attempt to exclude or limit the occupier’s liability.

Answer 73

The term ‘premises’ under the Occupiers Liability Act 1957 includes any fixed or movable structure, including vessels, vehicles, or aircraft. It has a wide definition that encompasses various types of structures.

Answer 74

A trespasser/non-visitor is defined as someone who goes onto the land without invitation and whose presence is either unknown to the proprietor or, if known, is practically objected to

Answer 75

In an Occupiers’ Liability Act 1957 claim, potential defences that can be relied upon include consent/volenti, contributory negligence, and illegality. Consent/volenti can be used if the claimant willingly accepted the risk. Contributory negligence can be used if the claimant’s own negligence contributed to the incident. Illegality can be used if the claimant’s actions were illegal.

Answer 76

Under the Occupiers Liability Act 1957, visitors are persons who are lawfully on the premises. This includes those with express or implied permission, lawful authority, and contractual permission. Visitors are the same as invitees and licensees under common law.

Answer 77

In determining the common duty of care under the Occupiers’ Liability Act 1957, factors such as the likelihood of harm, magnitude of harm, social value of the activity, and cost of preventative measures are considered. These factors are balanced against each other to determine the standard of care expected of the occupier.

Answer 78

Under UCTA 1977, exclusion clauses in relation to negligence (including breach of duty under the Occupiers’ Liability Act 1957) cannot exclude or restrict liability for death or personal injury. However, in relation to other loss, a person can exclude or restrict liability for negligence if the term or notice satisfies the requirement of reasonableness, as defined in Section 11 of UCTA 1977.

Answer 79

To establish a duty of care owed by an occupier to a trespasser/non-visitor, three conditions need to be satisfied: (1) the occupier is aware of the danger or has reasonable grounds to believe that it exists, (2) the occupier knows or has reasonable grounds to believe that the other person is in the vicinity of the danger, and (3) the risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection.

Answer 80

An occupier can limit permission for visitors through notice by imposing restrictions in terms of area, time, or purpose. For example, signs indicating restricted areas or opening hours can limit the scope of permission and turn a visitor into a trespasser.

Answer 81

Warnings can be used to discharge the duty of care under the Occupiers’ Liability Act 1957. If there is adequate warning of a danger, written, visual, or oral, and the warning is enough to enable the visitor to be reasonably safe, the occupier may have discharged their duty. The warning should make the visitor aware of the danger, its location, and how to avoid it.

Answer 82

Under CRA 2015, traders cannot exclude their liability for death or personal injury resulting from negligence. However, they may exclude liability for other loss if the term or notice is fair. The fairness of a term is determined by whether it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer, as defined in Section 62 of CRA 2015.

Answer 83

Implied permission exists based on an occupier’s behavior. For example, a postman has implied permission to enter a property to deliver letters. However, implied permission can be limited by notice, such as signs indicating restricted access or activities.

Answer 84

The standard of care for an occupier’s duty to a trespasser/non-visitor is such care as is reasonable in all the circumstances to see that the entrant does not suffer injury on the premises by reason of the danger concerned.

Answer 85

If neither UCTA 1977 nor CRA 2015 applies, common law restrictions may still apply. These restrictions are based on the principle of common humanity, as established in the case of British Railway Board v Herrington [1972] AC 877. The common law restrictions ensure that a conscientious person with the defendant’s knowledge, skill, and resources would be reasonably expected to have done something to help avoid the accident.

Answer 86

Lawful authority refers to the right conferred by law for a person to enter premises. Police officers with a warrant and persons with statutory rights, such as gas board officials, can enter premises with lawful authority.

Answer 87

Section 3 of the Occupiers’ Liability Act 1957 states that an occupier cannot, by contract, exclude or restrict the common duty of care owed to a third party. This means that if an occupier is bound by a contract to allow strangers (non-visitors) to enter or use the premises, the duty of care owed to those strangers cannot be restricted or excluded by the contract.

Answer 88

Contractual permission refers to entering premises under the terms of a contract with the occupier. In the absence of express provisions, there is an implied term that the entrant is owed the common duty of care. This means that the occupier owes a duty of care to visitors with contractual permission.

Answer 89

Causation and remoteness in claims under the Occupiers’ Liability Act 1957 are addressed using the same legal principles as in negligence claims. The courts assume that causation and remoteness have been satisfied unless there are specific issues that need closer examination. The legal tests used in negligence claims can be applied to determine causation and remoteness in Occupiers’ Liability Act claims.

Answer 90

A stranger to the contract is defined as someone who is not entitled to the benefit of the contract, such as not being a party or a successor. This definition is outlined in Section 3(3) of the Occupiers’ Liability Act 1957.

Answer 91

The standard of care owed by an occupier to a visitor is that of a reasonable occupier. It is an objective test, similar to negligence. The occupier must take reasonable care to ensure the visitor’s safety on the premises.

Answer 92

Section 3(1) of the Occupiers’ Liability Act 1957 aims to protect employees of a person with whom the occupier has contracted. If the occupier has contracted with a person for their employees to do work on the premises, the occupier may not restrict or exclude any liability to those employees under the Occupiers’ Liability Act 1957. Additionally, any term of the contract that obliges the occupier to increase the level of care shown to these employees will establish the standard of care to be shown.

Answer 93

If an occupier is aware of a visitor’s vulnerability, they can reasonably be expected to take steps to guard against it. For example, if an occupier is aware that a visitor is blind, they should take measures to ensure their safety, such as warning them of potential hazards.

Answer 94

The legal test for the defence of volenti in an Occupiers’ Liability Act 1957 claim is that the claimant must be fully aware of the particular risk and willingly accept the risk through their conduct. Volenti can be used as a defence if the claimant voluntarily assumed the risk.

Answer 95

Personal characteristics such as age, physical disabilities, or mental impairments may affect the standard of care owed by an occupier. The occupier should consider these characteristics and take appropriate measures to ensure the visitor’s safety.

Answer 96

UCTA 1977 restricts the use of exclusion clauses to exclude or limit liability for negligence, which includes breach of duty under the Occupiers’ Liability Act 1957. Section 2(1) of UCTA 1977 states that a person cannot exclude or restrict their liability for death or personal injury resulting from negligence. However, in relation to other loss, a person can exclude or restrict their liability for negligence if the term or notice satisfies the requirement of reasonableness, as defined in Section 11 of UCTA 1977.

Answer 97

The legal test for the defence of contributory negligence in an Occupiers’ Liability Act 1957 claim is that the degree of care, and want of care, which would ordinarily be looked for in such a visitor is taken into account. The courts consider the claimant’s own negligence and assess whether they contributed to the incident.

Answer 98

Under the Occupiers’ Liability Act 1984, the occupier is liable for physical injury, including disease and any impairment of a person’s physical or mental condition. However, property damage is not recoverable.

Answer 99

An occupier can limit their duty of care to visitors through notice. By providing clear and appropriate signs or notices, an occupier can restrict entry to certain areas, impose time limits, or specify the purpose for which visitors are permitted on the premises.

Answer 100

The legal test for the defence of illegality in an Occupiers’ Liability Act 1957 claim is that the claimant’s actions were illegal. Illegality can be relied upon as a defence if the claimant’s actions were unlawful or against public policy.

Answer 101

The three terms that need to be determined to decide whether the OLA 1957 applies and whether a duty of care is owed are: (1) Whether the defendant is an occupier; (2) Whether the defendant is an occupier of premises that caused loss to the claimant; and (3) Whether the claimant is a visitor.

Answer 102

An occupier is someone who has a sufficient degree of control over the premises.

Answer 103

For an occupier to escape liability when using independent contractors under the Occupiers’ Liability Act 1957, they must satisfy the requirements of hiring an independent contractor, selecting the independent contractor, and supervising and checking that the work is properly done. These requirements ensure that the occupier acted reasonably in engaging the independent contractor.

Answer 104

Public rights of way, such as footpaths, are not covered by the Occupiers Liability Act 1957 or the Occupiers Liability Act 1984. Visitors using public rights of way rely on common law principles. Private rights of way, on the other hand, are covered by the Occupiers Liability Act 1984.

Answer 105

To be considered a visitor under the OLA 1957, a person must have some sort of permission or authority to be on the premises. This can be express or implied permission, permission through a contractual provision, permission granted by statute, or permission due to the doctrine of allurement in the case of children.

Answer 106

The common duty of care under the OLA 1957 is to take such care as is reasonable in all the circumstances of the case to ensure that the visitor will be reasonably safe in using the premises. The standard of care is an objective test and depends on the characteristics of the visitor. For example, a higher standard of care is owed to children, while less might be expected of occupiers in relation to skilled visitors.

Answer 107

The common law defines an occupier as a person who has a sufficient degree of control over the premises.

Answer 108

The key elements in establishing a primary victim claim for psychiatric harm include identifying the parties involved, identifying the loss suffered, and establishing that the claimant is a primary victim. Additionally, it must be determined whether physical injury was reasonably foreseeable as a result of the defendant’s negligence and if a duty of care is owed based on existing precedents or by analogy with existing cases.

Answer 109

The Alcock criteria are used to determine if a duty of care is owed to a secondary victim. The criteria include: (1) Was psychiatric harm reasonably foreseeable? (2) Is there proximity of relationship between the claimant and the victim? (3) Is there proximity in time and space to the accident or its immediate aftermath? (4) Was the psychiatric harm shock-induced?

Answer 110

A primary victim is someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety. They are involved in the traumatic event and are in the area of danger. On the other hand, a secondary victim suffers psychiatric harm due to fear for someone else’s safety, typically a close relative. They witness the traumatic event or its immediate aftermath but are not in the danger zone.

Answer 111

‘Assumption of responsibility’ cases refer to situations where a defendant owes a claimant a duty of care not to cause psychiatric harm because the defendant has ‘assumed responsibility’ to ensure that the claimant avoids reasonably foreseeable psychiatric harm. Examples include employer/employee, doctor/patient, and police/police informant relationships.

Answer 112

Psychiatric harm, in this context, refers to a form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events. It can be either a medically recognized psychiatric illness or a shock-induced physical condition

Answer 113

An actual victim is a person who has suffered physical harm and possibly psychiatric harm. A primary victim is someone who suffers psychiatric harm as a result of being in reasonable fear for their own physical safety. A secondary victim is someone who suffers psychiatric harm due to fear for someone else’s safety. Secondary victims are not in the danger zone.

Answer 114

To determine if a duty of care is owed to a primary victim, factors such as whether physical harm was reasonably foreseeable and the relationship between the characteristics of the claimant and the requirements made of them by the defendant are considered. Signs of stress and the size and scope of the business and availability of resources are also taken into account.

Answer 115

One example is the Hillsborough stadium disaster case (Alcock v Chief Constable of South Yorkshire), where claims were brought by relatives and friends of the victims who witnessed the tragedy on live television or heard about it on the radio. The court held that the claimants did not meet the proximity of relationship and proximity in time and space criteria. Another example is the McLoughlin v O’Brien case, where a mother witnessed the immediate aftermath of a car accident involving her family members and successfully claimed for psychiatric harm.

Answer 116

The requirement for a sudden shock in secondary victim claims is important because it distinguishes between cases where the psychiatric harm is a reaction to an immediate and horrifying impact and cases where the harm develops gradually over time. The courts have held that a psychiatric illness caused by a sudden shock is more likely to meet the criteria for a secondary victim claim, while gradual realizations of what has happened are less likely to satisfy the criteria.

Answer 117

When determining whether it is fair, just, and reasonable to impose a duty of care in secondary victim claims, factors such as policy considerations, including floodgates, crushing liability, the risk of fraudulent claims, and evidential difficulties, are taken into account. The court aims to strike a balance between allowing legitimate claims and preventing an excessive number of potential claimants.

Answer 118

The ‘thin skull’ rule states that if physical injury is reasonably foreseeable, the defendant is liable for the full extent of the psychiatric harm, even if the claimant has suffered to a greater extent due to a pre-existing condition. This rule should be discussed under remoteness in the general negligence sequence.

Answer 119

If physical injury is held to be reasonably foreseeable, the courts will apply the normal principles for determining the existence of a duty of care. Proximity and fairness are likely to be relatively straightforward in these cases, as the primary victim is always present at the traumatic event, ensuring geographical proximity between the claimant and defendant. If the defendant negligently puts the claimant in fear of their safety, it is likely that the courts will find it fair, just, and reasonable to impose a duty of care for any resulting psychiatric damage.

Answer 120

The requirement for a close tie of love and affection in secondary victim claims helps establish the proximity of relationship between the claimant and the victim. This requirement is rebuttably presumed in cases involving parent/child, husband/wife, and engaged couples. However, there is no such presumption for grandparent/grandchild or sibling relationships. The courts consider the nature of the relationship and whether there are close ties of love and affection on a case-by-case basis.

Answer 121

Bystanders and rescuers are not given any special status in the area of law concerning psychiatric harm. They are classified as either primary or secondary victims based on whether they feared for their own safety. If a rescuer or bystander suffers psychiatric harm due to fearing for their own safety, they will be considered a primary victim.

Answer 122

The nature and extent of the work being undertaken; signs of stress from the claimant; and the size and scope of the business and availability of resources.

Answer 123

Where a claimant has suffered pure psychiatric harm – ie without physical impact – the injury must be: * caused by a sudden shock; and either * a medically recognised psychiatric illness; or * a shock- induced physical condition (such as a miscarriage or heart attack).

Answer 124

Primary victims A primary victim is someone who was actually involved in the incident. So, a primary victim: * was in the actual area of danger; or * reasonably believed that he was in danger. The requirements for a duty of care to be owed to a primary victim are: * primary victims are owed a duty of care in relation to their pure psychiatric harm, provided the risk of physical injury was foreseeable; * for primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.

Answer 125

secondary victim: * witnesses injury to someone else; or * fears for the safety of another person. In order to be owed a duty of care, the secondary victim must have suffered a medically recognised psychiatric illness, or shock- induced physical condition, caused by sudden shock.

Answer 126

To succeed in a claim for negligence, it is necessary to show that the defendant was at fault by establishing a breach of duty of care. On the other hand, the Consumer Protection Act 1987 introduced a strict liability regime, making it easier for consumers to claim without the need to prove fault on the part of the defendant.

Answer 127

There are two limits on the type of damage for which a claim can be brought. First, no claim can be brought in relation to damage to property unless the sum to be awarded exceeds £275, excluding interest. Second, no claim for damage to property can be brought unless the property is ordinarily intended for private use/occupation/consumption and intended by the person suffering the loss or damage mainly for their own private use/occupation/consumption.

Answer 128

Under the Consumer Protection Act 1987, the manufacturer of a product, and possibly others along the supply chain, may be held liable for damage caused by a defective product.

Answer 129

Under the Consumer Protection Act 1987, anyone suffering damage from a defective product can bring a claim, whether or not they purchased or used the product. The Act does not limit the protection to people who purchased or used the product.

Answer 130

To bring a claim under the Consumer Protection Act 1987, a claimant needs to show that the product was defective and not such as persons are generally entitled to expect, taking into account warnings, packaging, and expected use. There is no need to show fault on the part of the defendant.

Answer 131

The available defences under the Consumer Protection Act 1987 include the defence that the defect did not exist in the product at the relevant time and the defence that the state of scientific and technical knowledge was not such that a producer might be expected to have discovered the defect.

Answer 132

Under the Consumer Protection Act 1987, a valid claim requires a product with a defect that causes damage. The persons liable for the damage include the producer of the product, anyone who has held themselves out as the producer, or any person who has imported the product into the UK from outside in the course of business. Defences to product liability claims include compliance with legal requirements, non-supply of the product, absence of profit motive, absence of defect at the relevant time, lack of scientific and technical knowledge, and defects in subsequent products.

Answer 133

In the context of product liability, a claim in negligence requires establishing a duty of care, breach of that duty, and causation. Manufacturers owe a duty of care to those who use their products, as established in the case of Donoghue v Stevenson.

Answer 134

A party in a product liability claim under the Consumer Protection Act 1987 can avoid liability if they can prove that the defect did not exist in the product at the relevant time or that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description might be expected to have discovered the defect if it had existed in their products while under their control. Contributory negligence is also available as a defence.

Answer 135

According to the Consumer Protection Act 1987, a defect in a product exists if the safety of the product is not what people generally are entitled to expect. The Act provides guidance on what people are entitled to expect and considers relevant case law to distinguish the meaning of ‘defect’ from the standard of care owed in negligence.

Answer 136

The claim must be brought within three years from the later of the date the injury and/or damage occurred or when the claimant became aware or should reasonably have become aware of the damage. There is a long stop of ten years after the product was put into circulation by the defendant, which represents an absolute defence to such actions after this time.

Answer 137

Claims under the Consumer Protection Act 1987 and liability in negligence are not mutually exclusive. A single set of facts can give rise to claims under both the CPA and in negligence. Both claims could be brought in the same proceedings, but if both claims succeed, the claimant cannot be compensated for the same losses twice.

Answer 138

Under the Consumer Protection Act 1987, ‘damage’ includes death, personal injury, and any loss or damages to any property. However, pure economic loss cannot be recovered.

Answer 139

Under the Consumer Protection Act 1987, ‘producer’ means the manufacturer for manufactured products, the person who won or abstracted the product for products that are won or abstracted, and the person who carried out the process for products where the essential characteristics are attributable to a process carried out.

Answer 140

Under the Consumer Protection Act 1987, those liable for damage caused by a defective product include the producer of the product, anyone who has held themselves out as the producer, or any person who has imported the product into the UK from outside in the course of business. If more than one person is liable, they will be jointly and severally liable.

Answer 141

Defences under the Consumer Protection Act 1987 include compliance with legal requirements or retained EU obligations, non-supply of the product, absence of profit motive, absence of defect at the relevant time, lack of scientific and technical knowledge, and defects in subsequent products. Attempting to exclude or limit liability is prohibited.

Answer 142

Section 2(3) of the Consumer Protection Act 1987 provides that someone who supplied a defective product to any person will be liable for the damage caused by the defect if the person suffering damage asks for details of the producer/importer within a reasonable time and when they cannot identify the producer/importer themselves, and the supplier fails to identify that person. This ensures that there is always someone in the United Kingdom who falls within Section 2(2) in relation to goods purchased in England and Wales.

Answer 143

The standard of care in negligence requires taking reasonable care, while the Consumer Protection Act 1987 sets a higher bar for manufacturers by considering what people are generally entitled to expect from a product. This means that the Act demands more from manufacturers than traditional negligence requires.

Answer 144

To establish liability under the Consumer Protection Act 1987, it is necessary to show that the product was defective and not such as persons are generally entitled to expect, taking into account warnings, packaging, and expected use. It is not necessary to show fault on the part of the defendant.

Answer 145

A regime where parties could be found liable without it being necessary to show fault on their part

Answer 146

is not as safe as people are generally entitled to expect

Answer 147

No. It is not possible to exclude or limit liability under the Act.

Answer 148

No – this would ordinarily be considered pure economic loss, and not recoverable.

Answer 149

Whether the manufacturer fell below the standard of a reasonably competent manufacturer.

Answer 150

To show a duty of care under the narrow rule the claimant must establish that: * the defendant is a ‘manufacturer’; * the item causing damage is a ‘product’; * the claimant is a ‘consumer’; and * the product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination.

Answer 151

Anyone who can establish the following can sue under the CPA 1987: * that they have suffered damage * caused by * a defect * in a product.

Answer 152

A partial injunction can be seen as a compromise, striking a balance between the two parties by limiting the time and frequency of the activity rather than preventing it completely. The court may award a partial injunction where the defendant’s activities are of public benefit.

Answer 153

The four land-based torts are Private Nuisance, Public Nuisance, the rule in Rylands and Fletcher, and Trespass to Land.

Answer 154

The court considers various factors, including time and duration, locality, abnormal sensitivity, malice, lack of care, and excessive behavior when determining if the use of land is reasonable or not in a private nuisance case.

Answer 155

The court will consider what steps it is fair and reasonable to expect the defendant to take, considering the resources available to both the defendant and the claimant. The court must also take into account the competing demands on and public purpose of the funds of public authority defendants.

Answer 156

The elements of the tort of public nuisance are: *conduct that materially affects the reasonable comfort and convenience of a ‘class of Her Majesty’s subjects’; and *the claimant has suffered particular harm.

Answer 157

Damages can be awarded in lieu of an injunction where the loss is substantial and outweighs the claimant’s interests. This is often the case when public interest is involved.

Answer 158

Abnormal sensitivity is a factor that the court considers in a private nuisance case. If a claimant is unusually sensitive or has unusually sensitive property, they cannot claim that activities that would not interfere with an ordinary occupier are a nuisance simply because they are a nuisance to them alone.

Answer 159

*that there is an interference with the claimant’s use and enjoyment of land or some rights they enjoy over it; and *that the interference is unlawful (meaning unreasonable). ‘(1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.’ The last type of interference (often known as an interference with personal comfort or loss of amenity) is potentially very wide, encompassing, for example, smells, dust, vibration and noise. It will also include interferences with rights enjoyed over land (such as a right to light acquired by prescription). However, the courts are generally slower to find actionable nuisances based on personal discomfort than where actual damage to property or encroachment is concerned.

Answer 160

A landlord will not usually be liable for a private nuisance unless they have authorized or actively participated in the nuisance. Additionally, a landlord could be liable if they lease the property in circumstances where there is a very high probability that leasing the land would result in the creation of the nuisance.

Answer 161

The remedies in public nuisance are the same as for private nuisance, but only injunctions can be granted where the claimant is the Attorney General or local authority.

Answer 162

The court will weigh up all the competing factors in the exercise of its unfettered discretion. This includes considering public interest, the impact on the defendant’s business, and the enjoyment of the defendant’s activity by the public.

Answer 163

The elements of a claim for private nuisance are: (1) indirect interference, (2) recognized damage, (3) continuous act, and (4) unlawful interference.

Answer 164

In order to bring an action in private nuisance, the claimant must have a legal interest in the land affected, such as a possessionary or proprietary interest. The defendant in a private nuisance claim can be the creator of the nuisance, the occupier of the land from which the nuisance originates, or the owner of the land.

Answer 165

The elements of the tort are: *The defendant brings onto their land for their own purposes something likely to do mischief *if it escapes *which represents a non- natural use of land *it causes foreseeable damage of the relevant type.

Answer 166

The potential remedies available in cases of nuisance are injunctions, damages, and abatement. Injunctions are the primary remedy and can be either full or partial. Damages can be awarded for any physical damage to property or consequential economic loss. Abatement represents a self-help remedy where the claimant acts to stop the nuisance.

Answer 167

The types of damage recoverable in a claim for private nuisance are physical damage to property and sensible personal discomfort (SPD). SPD refers to the interference that affects the senses of the claimant, such as unpleasant odors or noise, and damages the amenity value of the property.

Answer 168

In Robinson v Kilvert, the claimant’s heat-sensitive paper was damaged by the heat emitted from the defendant’s premises. The court held that the claimant’s paper was abnormally sensitive, and ordinary paper would not have been affected. In McKinnon Industries v Walker, the claimant’s orchids were damaged by fumes and smuts emitted by the defendant’s factory. The court found the defendant’s use of land to be unreasonable, and the claimant was entitled to recover for the damage to the sensitive orchids.

Answer 169

A Private nuisance refers to interferences with the use and enjoyment of one’s property, while public nuisance involves acts or omissions that materially affect the reasonable comfort and convenience of a class of people. Public nuisance is a crime and can also be a tort in certain circumstances.

Answer 170

The general rule is that a nuisance must be continuous. A one-off isolated event is not normally actionable in private nuisance. However, there are exceptions to this rule, such as a single incident caused by an underlying state of affairs or an activity that creates a state of affairs giving rise to the risk of escape of physically dangerous or damaging material.

Answer 171

The court considers various factors, such as time and duration, locality, abnormal sensitivity, malice, lack of care, and excessive behavior when determining if the defendant’s behavior is excessive in a private nuisance case.

Answer 172

Defenses that might be available to the defendant in a private nuisance claim include statutory authority, prescription, and coming to the nuisance. The remedies available to the claimant if successful in a private nuisance claim are injunctions and damages.

Answer 173

An individual, a local authority, or the Attorney General can sue in cases of public nuisance. An individual can only sue if they have suffered special damage, which means they have suffered over and above the rest of the class or in a way that is different from the rest of the class.

Answer 174

Malice is a factor that the court considers in a private nuisance case. If the defendant’s aim is solely to annoy the claimant without any legitimate reason for their actions, it will normally constitute a nuisance.

Answer 175

The creator, owner, or occupier of the nuisance can be sued in cases of public nuisance. The tortfeasor is usually easily identifiable.

Answer 176

The law does not look at whether the defendant is at fault, but rather considers whether the activity causing the nuisance amounts to an unreasonable use of land. The courts balance various factors, such as time and duration of the interference, the locality or character of the neighborhood, and the competing interests of the parties involved.

Answer 177

Public nuisance involves acts or omissions of the defendant that materially affect the reasonable comfort and convenience of life of a class of people. It is different from private nuisance in that it requires a class of people to have been affected, and it is both a crime and a tort. Public nuisance covers a wide range of acts or omissions that can be considered nuisances.

Answer 178

If the defendant has shown a lack of care in causing the nuisance, it is likely to count in the claimant’s favor. The defendant’s lack of care may indicate that they are being unreasonable and creating a nuisance.

Answer 179

(1) Who can sue? The claimant must have a proprietary interest in the land affected. (2) Who can be sued? The person who brings, collects, and keeps the ‘thing’ onto the land (the creator of the nuisance) and/or any person who has control over the land (owner/occupier). (3) Loss: The claimant must suffer some damage. The only types of loss recoverable under Rylands v Fletcher are property damage and consequential economic loss.

Answer 180

The elements of public nuisance include an act or omission, whether it is a one-off event or continuous, the impact on a class of people, and whether it materially affects the reasonable comfort and convenience of the claimant/s.

Answer 181

The rule in Rylands v Fletcher covers situations where something escapes from the defendant’s land to the claimant’s land, causing foreseeable damage. The claimant must prove that the interference or act being carried out by the defendant is continuous, and that the interference is unreasonable. The defendant’s right to use their land is balanced against the claimant’s right to enjoy their land without disturbance.

Answer 182

If the defendant has behaved in an excessive manner, it may indicate that they are being unreasonable and creating a nuisance. Excessive behavior is a factor that the court considers when determining if the defendant’s behavior is unreasonable.

Answer 183

The defences available in cases of public nuisance include prescription, statutory authority, consent, contributory negligence, act of third party, act of God, and necessity.

Answer 184

Trespass to land involves unlawful presence on somebody else’s land. The interference must be intentional and direct, and an action in trespass to land is actionable per se, meaning the claimant need not have suffered any loss. The claimant must have a possessionary or proprietary interest in the land affected to bring a claim.

Answer 185

The elements of the tort of Rylands v Fletcher are: (1) The defendant brings onto land and accumulates there; (2) For their own purposes, anything likely to do mischief if it escapes; (3) Escape; (4) Escape caused foreseeable harm; and (5) Non-natural use of land.

Answer 186

The remedies available in cases of public nuisance are injunctions and damages. Injunctions are the primary remedy and can be either full or partial. Damages can be awarded for physical damage to property, consequential economic loss, or inconvenience.

Answer 187

Indirect interference in a claim for private nuisance refers to interference with the use or enjoyment of the claimant’s land that is not a direct interference, such as sounds, smells, fumes, or vibrations. It occurs when the nuisance starts on the defendant’s land but causes damage to some aspect of the claimant’s use or enjoyment of their land.

Answer 188

In a trespass to land claim, the claimant must prove direct and physical interference, and that the interference was intentional. The claimant does not need to prove any loss, unlike the other three land-based torts.

Answer 189

The defense of prescription in a private nuisance case applies when the defendant’s activity has been an actionable nuisance for 20 years or more, and no action has been taken against it. In such cases, the defendant will have earned the right to continue committing the nuisance.

Answer 190

The defenses available to the defendant in a trespass to land claim include license, consent, and necessity. The remedies available to the claimant if successful in a trespass to land claim are damages and an injunction.

Answer 191

The defense of statutory authority in a private nuisance case applies when the defendant’s activity is being carried out based on statutory authority. The defendant will escape liability if they have exercised all due care and the nuisance is an inevitable consequence of the activity.

Answer 192

The defense of consent in a private nuisance case applies when the claimant specifically agrees to the defendant causing the nuisance. If the claimant, knowing the danger to their property, has shown willingness to accept the risks, their consent will be a defense.

Answer 193

The general rule is that a nuisance must be continuous. This means that a one-off isolated event is not normally actionable in private nuisance. However, there are exceptions to this rule, such as a single incident caused by an underlying state of affairs or an activity that creates a state of affairs giving rise to the risk of escape of physically dangerous or damaging material.

Answer 194

Public interest plays a role in cases of nuisance as it can influence the court’s decision on whether to grant an injunction. The court may consider how the public enjoys the defendant’s activity or if the defendant’s business would be severely impacted by an injunction.

Answer 195

The defences available in the tort of Rylands v Fletcher are the same as for public nuisance, with the addition of common benefit (a type of consent) and default of the claimant. The defences include: (1) Common benefit, (2) Act or default of the claimant, (3) Statutory authority, (4) Act of third party, (5) Act of God, and (6) Contributory negligence.

Answer 196

The defense of contributory negligence in a private nuisance case applies when the claimant’s own negligence contributes to the nuisance. The usual rules of contributory negligence apply, and the defendant may argue that the claimant should have taken reasonable steps to avoid or minimize the nuisance.

Answer 197

The remedies available in the tort of Rylands v Fletcher are the same as for private nuisance, namely damages and injunctions. Damages are the most common remedy given that the types of loss recoverable in Rylands v Fletcher are property damage and consequential economic loss.

Answer 198

Abatement is a self-help remedy where the claimant takes reasonable steps to prevent the nuisance from continuing. It can be used in certain circumstances when the claimant has the right to enter onto the land of another and the defendant’s belongings must be left on the property.

Answer 199

The defense of act of third party in a private nuisance case applies when the nuisance has been created by a third party for whom the defendant bears no responsibility. The defendant will not be liable for the nuisance unless they adopt or continue the nuisance.

Answer 200

The defense of act of God in a private nuisance case applies when the nuisance results from an act of God, such as an unexpected and unavoidable natural event. The defendant will not be liable for the nuisance unless they adopt or continue the nuisance.

Answer 201

Special damage refers to the harm or loss suffered by the claimant that is over and above the rest of the class or in a way that is different from the rest of the class. It is a requirement for an individual to sue in public nuisance.

Answer 202

n the tort of Rylands v Fletcher, the non-natural use of land is a crucial element. It means that the use of the land must be non-ordinary or non-ordinary according to the standards of the day. The circumstances, including the type of area, must be taken into account when determining whether the use is non-natural. Storage of substantial quantities of chemicals on industrial premises is considered an ‘almost classic case’ of non-natural use.

Answer 203

If a claimant is successful in proving private nuisance, they may be awarded three potential remedies: an injunction, damages, or abatement. An injunction is the primary remedy for a continuing nuisance, and it can be full (banning the activity altogether) or partial (regulating the activity on certain conditions). Damages may be awarded to compensate the claimant for their losses, and abatement involves taking action to remove or reduce the nuisance.

Answer 204

Interference with land can include both the airspace above the land and the ground beneath it.

Answer 205

In a claim of private nuisance, the creator of the nuisance, the occupier of the land from where the nuisance has come, and the owner of the land from where the nuisance has come can all be sued.

Answer 206

According to case law, there is a limit to how deep the concept of land ownership extends. At some point, physical features such as pressure and temperature render the concept of the strata belonging to anyone as absurd

Answer 207

An occupier can be sued for nuisances created by contractors if the nuisance created was a reasonably foreseeable consequence of the task requested of the contractor by the occupier.

Answer 208

In trespass to land, the claimant must have a legal interest in the land affected, such as ownership or possession. However, in situations where a trespasser possesses demised land, the claimant would be the tenant or licensee in possession, rather than the landowner.

Answer 209

An example of direct physical interference in trespass to land is piling a large compost heap on someone else’s land without permission.

Answer 210

In trespass to land, the defendant must intend the direct action that results in the trespass, but they do not need to intend to trespass. For example, accidentally walking over a private field still constitutes trespass.

Answer 211

Examples of intentional direct interference that could amount to trespass to land include entering someone’s property without permission, building structures on another person’s land, or placing objects on someone’s land without consent.

Answer 212

Yes, interference with land can include both physical elements, such as structures or objects, as well as non-physical elements, such as noise or vibrations.

Answer 213

The primary remedies in trespass to land are damages and injunctions. Other remedies include re-entry, recovery of land, and mesne profits (The claimant might bring an action for mesne profits to claim money from a defendant who wrongfully occupied the land and made a profit or saved expenditure in doing so, eg where a tenant fails to leave at the end of their tenancy and stops paying rent.).

Answer 214

When determining whether the use of land in private nuisance is unreasonable, factors such as time and duration, locality, abnormal sensitivity, malice, lack of care, excessive behavior, and public benefit may be relevant. However, when the use of land causes physical damage, the court will not take into account locality and is likely to find the use unreasonable.

Answer 215

A claim in trespass to land must be brought within six years from the date on which the cause of action accrued.

Answer 216

Some examples of non-physical elements that can interfere with land include noise, vibrations, or other forms of environmental pollution.

Answer 217

Physical damage to property, SPD, and consequential economic loss.

Answer 218

‘(1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.’ The overall duration of an interference will be a very important factor. The longer the interference has lasted, the more likely it is that the court will consider the interference unreasonable. On the other hand, if the interference is only short term then the claimant will generally be expected to put up with it.

Answer 219

f the claimant has suffered interference with personal comfort but not physical damage, whether the interference is unreasonable will be judged in relation to the degree and types of interference which can be expected in that particular locality. Each area will have its own standards. For example, a person who lives in London can expect to have to tolerate more noise from traffic, etc than a person who lives in a rural village in Wales. Conversely, the smells attributable to farm life are more appropriate to a rural location than a city centre.

Answer 220

courts consistently take the view that the interests of the public should not deprive an individual of their private rights. Public benefit, therefore, is rarely a relevant factor in deciding whether the defendant’s use is unreasonable. (It may, however, be relevant when the court is deciding whether or not to grant an injunction

Answer 221

In Hollywood Silver Fox Farm, the sole purpose of the defendant’s shooting of a shotgun near to the claimant’s countryside property was to annoy the claimant and, more particularly, to upset the claimant’s silver foxes during breeding time. The interference, as carried out with malice, could not be regarded as a reasonable one. Malice is a factor that is likely to tip the balance in the claimant’s favour, potentially making an interference unlawful that would have been reasonable (and lawful) if done without malice.

Answer 222

both owner- occupiers and tenants can sue in private nuisance as they have the right to exclusive possession deriving from their proprietary interest.

Answer 223

* The creator of the nuisance. * The occupier of the land from which the nuisance originates (whether or not the occupier also created it). * The landlord.

Answer 224

which an occupier can be liable for natural events on their land. Where an interference on the defendant’s land results from a ‘secret unobservable process of nature’ (eg subsidence under or near the foundations of the defendant’s house) or from an act of God (eg lightning) then the defendant will not be liable in nuisance unless they adopt or continue the nuisance.

Answer 225

The two elements of the defence of necessity are: * a situation of necessity exists because of an imminent danger to life and limb (or, in very limited circumstances, a threat to property); and * that the defendant’s actions were reasonable in all the circumstances.

Answer 226

the mere grant of planning permission (which is granted by local authorities and not Parliament) does not legitimise a nuisanc However, the grant of planning permission can operate to change the character of the neighbourhood, which is a consideration when deciding whether an interference with personal comfort is unlawful.

Answer 227

quia timet, ie in anticipation of the commission of the tort by the defendant, in order to prevent the claimant suffering any damage. In order to obtain such an injunction the claimant will have to show: * they are almost certain to incur damage without the injunction; and * such damage is imminent; and * the defendant will not stop their course of conduct without the order of the court.

Answer 228

Abatement involves the removal of the interference by the victim. The victim must, however, normally give prior notice to the wrongdoer, except in an emergency or where the nuisance can be abated (removed) without entering the wrongdoer’s land.

Answer 229

12.3.5 Defences 12.3.5.1 Escape caused by the unforeseeable act of a stranger The defendant will not be liable if they could not have reasonably foreseen the act of the stranger and therefore could not do anything to prevent the harm. 12.3.5.2 Escape caused by an ‘act of God’ which could not have been reasonably foreseen The defendant will not be liable for an extraordinary act of nature, which could not have been reasonably foreseen. 12.3.5.3 Statutory authority This is considered in the context of private nuisance above. 12.3.5.4 Consent (voluntary assumption of risk) This is considered in Chapter 7. 12.3.5.5 Contributory negligence

Answer 230

The same defences apply as for private nuisance except for prescription. The main defence in public nuisance is that of statutory authority.

Answer 231

Injunctions and/or damages are available as for private nuisance. If the claim is brought by the local authority or Attorney General, the only remedy available is an injunction.

Answer 232

1. Act or omission; 2. One-off event or continuous; 3. Class of His Majesty's subjects; and 4. Materially affects comfort and convenience.

Answer 233

1. An individual - must have 'special damage' - suffered more over and above the rest of the class (and that there is, therefore, a class in the first place) or in a way that is different in kind from that suffered by the rest of the class. 2. Local Authority 3. Attorney General

Answer 234

A disclaimer can exclude liability for economic loss if it is reasonable and fair.

Answer 235

The House of Lords considered several factors when determining the reasonableness of the disclaimer, including the parties’ bargaining power, the practical consequences, the sums of money at stake, and the ability of the parties to bear the loss involved. They also considered whether it was reasonably practicable for the claimant to obtain advice from an alternative source considering cost and time, as well as the difficulty of the task being undertaken by the defendant.

Answer 236

The reasonableness of the claimant’s reliance on the defendant’s advice depends on several factors. One factor is the claimant’s own skill or knowledge in relation to the advice. If the claimant has relevant skill or knowledge, the courts may find it unfair, unjust, or unreasonable for the claimant to have relied on the defendant’s advice. Another factor is the general context in which the advice was given. Additionally, the courts consider whether the claimant has equal knowledge or skill as the defendant or if there is a disparity between them.

Answer 237

In general negligence, the types of loss that can be recovered include physical damage (property damage), consequential economic loss (loss of profit as a direct consequence of property damage), and pure economic loss (economic loss not resulting from damage to the claimant’s property or person).

Answer 238

Pure economic loss can be defined as economic loss that does not flow from damage to the claimant’s person or property. It includes situations such as loss of speculative profit or loss arising from damage to another person’s property.

Answer 239

The exceptions to the general rule for pure economic loss include pure economic loss caused by a negligent statement, wills, and references. These exceptions arise from negligent statements and establish a duty of care in certain circumstances.

Answer 240

The Consumer Rights Act 2015 regulates disclaimers between traders and consumers. If a surveyor, for example, is classified as a trader and the buyer as a consumer, the CRA 2015 would apply. However, the practical difference between UCTA 1977 and CRA 2015 in this context is minimal.

Answer 241

The reasonable reliance test has three requirements: (a) the claimant relied on the defendant’s advice, (b) it was reasonable for the claimant to rely on the defendant’s advice, and (c) the defendant knew or ought to have known that the claimant was relying on their advice.

Answer 242

The key elements of reasonable reliance are: (1) The claimant relied on the defendant’s advice; (2) It was reasonable for the claimant to rely on the defendant’s advice; and (3) The defendant knew or ought to have known that the claimant was relying on the advice.

Answer 243

The key elements of assumption of responsibility are: (1) The defendant assumed responsibility to perform professional services for the claimant; and (2) There is a relationship equivalent to a contract, where there is an assumption of responsibility in circumstances that would create a contract if not for the absence of consideration.

Answer 244

A special relationship can exist where the party seeking information or advice was trusting the other to exercise a degree of care as the circumstances required, and where it was reasonable for the party to do so. If the defendant gave information or advice knowing or ought to have known that the enquirer was relying on them, a duty of care may be owed.

Answer 245

The four criteria set out in Caparo Industries plc v Dickman [1990] 2 AC 605 are: (1) The defendant must communicate the advice to the claimant or know that it will be communicated to them; (2) The defendant must know the purpose for which the claimant will use the advice; (3) The defendant must know, or reasonably believe, that the claimant will rely on the advice without independent enquiry; and (4) The claimant must have acted upon that advice to their detriment.

Answer 246

When the defendant makes a statement to someone else but it reaches the claimant, there are additional hurdles to overcome. These include: (1) The defendant must communicate the advice to the third-party claimant or know that it will be communicated to them; (2) The defendant must know the purpose for which the claimant will use the advice; (3) The defendant must know or reasonably believe that the claimant will rely on the advice without independent inquiry; and (4) The claimant must have acted upon the advice to their detriment, with the expectation that the defendant would protect them from that loss.

Answer 247

The courts make a distinction between pure economic loss caused by a negligent act and pure economic loss caused by a negligent statement. Negligent acts can lead to pure economic loss, but the general rule remains that no duty of care is owed. However, negligent statements can give rise to a duty of care in certain circumstances.

Answer 248

The three concepts identified in Hedley Byrne for establishing a duty of care in respect of pure economic loss caused by a negligent statement are: (1) Reasonable reliance test, which considers the claimant’s reliance on the defendant’s advice; (2) Voluntary assumption of responsibility, where the defendant assumes responsibility for the correctness of their statement; and (3) Special relationship of trust and confidence, which arises when the party seeking advice trusts the other to exercise the necessary degree of care.

Answer 249

The general rule is that no duty of care is owed in respect of pure economic loss. However, there are exceptions to this rule, particularly in cases involving negligent statements.

Answer 250

The case of Caparo laid down the four criteria to be satisfied for a defendant to have assumed a responsibility towards a claimant: * The defendant knew the purpose for which the advice was required. * The defendant knew that the advice would be communicated to the claimant (either specifically or as a member of an ascertainable class). * The defendant knew that the claimant was likely to act on the advice without independent inquiry. * The advice was acted on by the claimant to its detrimen

Answer 251

As a general rule, a defendant does not owe any duty of care to a claimant not to cause pure economic loss. The types of loss that are classified as pure economic loss and are not recoverable are: ∘ economic loss caused by acquiring a defective item of property ∘ economic loss unconnected to personal injury to the claimant or physical damage to the claimant’s property ∘ economic loss caused by damage to the property of a third party ∘ economic loss where there is no physical damage: actions ∘ economic loss where there is no physical damage: statements

Answer 252

In the case of negligent statements, an exception to the general rule arises in cases where the court is able to find that there is, in fact, a special relationship between the defendant and the claimant. This special relationship may be found using the following criteria: ∘ Did the defendant assume a responsibility towards the claimant? ∘ Did the defendant know the purpose for which the advice was required? ∘ Did the defendant know that the advice would be communicated to the claimant, (either specifically or as a member of an ascertainable class)? ∘ Did the defendant know that the claimant was likely to act on the advice without independent inquiry? ∘ Was the advice acted on by the claimant to its detriment? ∘ Was it reasonable for the claimant to rely on the defendant for advice?

Answer 253

the type of damage suffered must have been reasonably foreseeable at the time of the breach

Answer 254

f the specific damage suffered was not reasonably foreseeable, then the claimant will still succeed if they can show that damage of the same ‘type’ was foreseeable: ‘type’ can be narrowly or broadly construed (mostly broadly). Once it is established that the ‘type’ of damage was foreseeable, then: * The claimant will succeed even if the precise way the damage occurred was not reasonably foreseeable. * The claimant will succeed even if the full extent of the damage was not reasonably foreseeable. * The defendant must take the claimant as they find them.

Answer 255

The defendant must take their victim as they find them, regardless of any pre-existing illness or lack of money.

Answer 256

The two principal remedies that a court can award in a successful tort action are damages and injunctions.

Answer 257

The legal test for contributory negligence is that the claimant failed to take reasonable steps for their own safety and this failure contributed to the claimant’s damage.

Answer 258

The legal test for illegality involves considering the underlying purpose of the prohibition transgressed, other relevant public policy, and whether denying the claim would be a proportionate response to the illegality. These factors were established in Patel v Mirza [2016] UKSC 42 and should be applied to determine whether the defence of illegality should be allowed. THERE MUST BE A DIRECT LINK BETWEEN THE ILLEGAL AND ACT AND TORT

Answer 259

The defence of consent, also known as volenti non fit injuria, is applicable in cases where the claimant has consented to the risks involved and cannot complain of the consequential damage. To succeed in this defence, the defendant must show that the claimant had the capacity to give valid consent, had full knowledge of the nature and extent of the risks, agreed to the risk of injury, and agreed voluntarily.

Answer 260

The aim of damages in the law of tort is to put the claimant in the position they would have been in but for the defendant’s tortious act, as far as this is possible with an award of money. Damages are designed to be compensatory and seek to restore the claimant to the position before the tort happened.

Answer 261

A finding of contributory negligence reduces the liability of a defendant in relation to the harm their breach of duty has caused the claimant. The claimant’s damages are reduced by a percentage determined by the court, taking into account the claimant’s share in the responsibility for the damage.

Answer 262

Examples include a passenger knowing the driver had consumed excessive alcohol, a person getting stuck in a toilet cubicle and attempting to escape through an unstable toilet roll holder, and a person failing to check for oncoming traffic before crossing the road.

Answer 263

The first requirement for the defence of consent is that the defendant must prove that the claimant had the mental capacity to consent to the risks involved. This requirement is usually straightforward unless the claimant is a young child or lacks the capacity to understand the risks. The second requirement for the defence of consent is that the claimant must have had full knowledge of the nature and extent of the risks that materialized. General knowledge is not sufficient, and the question is whether the particular claimant knew the specific risks involved. The third requirement for the defence of consent is that the claimant agreed to run the risk of injury due to the defendant’s negligence. This agreement can be express or implied, but knowledge of the risk alone is not sufficient to establish consent. The fourth requirement for the defence of consent is that the claimant agreed voluntarily to run the risk of injury due to the defendant’s negligence. The defence cannot succeed unless the claimant acted voluntarily, free of any constraint. This requirement is particularly relevant in considering rescue cases.

Answer 264

The three necessary conditions identified in Patel v Mirza are: (a) considering the underlying purpose of the prohibition transgressed and whether that purpose will be enhanced by denial of the claim, (b) considering other relevant public policy which may be rendered ineffective or less effective by denial of the claim, and (c) assessing whether denying the claim would be a proportionate response to the illegality.

Answer 265

General damages cover future financial losses that cannot be specifically proven, as well as non-quantifiable losses such as compensation for physical injury. Special damages, on the other hand, cover specifically provable and quantifiable financial losses at the time of trial.

Answer 266

Rescuers are generally protected from contributory negligence. However, if the rescuer negligently helped to create the emergency in the first place, they may not be protected. The nature of the duty and the specific circumstances are also considered.

Answer 267

The court has discretion in determining the reduction in damages for contributory negligence. The claimant’s degree of culpability is expressed in percentage terms, and an equivalent percentage of the damages is deducted from the claimant’s award. The court considers what is just and equitable in all the circumstances.

Answer 268

The ‘pain, suffering, and loss of amenity’ award in a tort claim aims to compensate the claimant for the effect of the injury on their lifestyle. It covers both the physical pain and suffering experienced and the impact on activities the claimant can no longer do, such as swimming or walking.

Answer 269

The two steps involved in the legal test for the defence of necessity are: (1) determining whether the defendant was acting in an emergency to prevent harm to the claimant, a third party, and/or themselves, and (2) assessing whether the defendant was not at fault in causing the emergency.

Answer 270

It prevents a claimant from seeking compensation for losses suffered while engaged in a criminal activity or intertwined with a crime.

Answer 271

For one-off future expenses, a lump sum will be given. However, for continuing losses like future loss of earnings or recurring medical treatment expenses, the court uses the multiplier/multiplicand approach. This approach takes the annual expense and multiplies it by the number of years the loss will continue to be suffered.

Answer 272

Deductions from damages may include any state benefits received by the claimant as a result of their injury, contractual sick pay, redundancy payment if the redundancy resulted from the injury, and any finding of contributory negligence. Insurance pay-outs, ill-health pensions, and sums received by way of gifts or charity are not deducted.

Answer 273

When a claimant dies as a result of a tort, their estate can bring a claim for any losses suffered by the deceased up to the date of death. The Fatal Accidents Act 1976 allows certain family members to claim compensation if they depended on the deceased. They may also be able to claim a bereavement award and/or funeral expenses.

Answer 274

Under the Road Traffic Act 1988, a drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured as a result. The Unfair Contract Terms Act 1977 and Consumer Rights Act 2015 also limit the use of consent as a defence in certain situations.

Answer 275

(a) The claimant failed to take reasonable steps for their own safety; and (b) this failure contributed to the claimant’s damage.

Answer 276

Under the Unfair Contract Terms Act 1977 and Consumer Rights Act 2015, being aware of a term limiting or excluding liability for certain losses does not mean that the party consents to those risks or losses. These acts provide that such terms may be subject to a test of reasonableness and may not apply when the claimant is a consumer.

Answer 277

…damages are reduced by a percentage which is just and equitable considering both the claimant’s and defendant’s culpability

Answer 278

the pain, suffering and loss of amenity award This award attemps to provide some financial compensation for the effect of the injury.

Answer 279

As a general rule, a defendant does not owe any duty of care to a claimant not to cause pure economic loss.

Answer 280

The types of loss that are classified as pure economic loss and are not recoverable are: ∘economic loss caused by acquiring a defective item of property ∘economic loss unconnected to personal injury to the claimant or physical damage to the claimant’s property ∘economic loss caused by damage to the property of a third party ∘economic loss where there is no physical damage: actions ∘economic loss where there is no physical damage: statements

Answer 281

Rescuers will not be considered to have consented to the risk of injury if: * they were acting to rescue persons or property endangered by the defendant’s negligence; and * they were acting under a compelling legal, social or moral duty; and * their conduct in all the circumstances was reasonable and a natural and probable consequence of the defendant’s negligence.

Answer 282

The multiplicand is based on the deceased’s net annual earnings. However, the court will also take into account the fact that, if the deceased were alive, they would have spent part of those earnings on themselves. So, not all of the deceased’s salary would have been available to support their dependants. Therefore, in order to avoid over- compensating the dependants, the deceased’s own living expenses will be deducted from their earnings. That will leave a reduced figure available as the basis for the dependency claim. The conventional deduction is 25% for a married person with children and 33% for a married person without children. Where all of the deceased’s children were no longer dependent upon them at the time of death, then the conventional deduction would also be 33%. The deceased might have contributed to the family’s wealth by means other than net annual salary. If so, such other contributions should become part of the multiplicand calculation. The contributions which may be taken into account include: * perks of the job, eg company car, reduced rate mortgage, reduced shopping bills, cheaper holidays, etc; * services which were provided to the household which will now have to be paid for, eg gardening, decorating, cooking, cleaning, etc.

Answer 283

multiplier should be based on the period of loss to the dependant, ie on the period for which the dependency might have continued. Clearly, the longest possible period a dependency could continue would be until the deceased would have ceased to work. In the case of a spouse of a deceased wage earner, it is likely that his period of dependency would continue for this full period – until the deceased ceased to work. However, if a particular claimant would not be dependent on the deceased for so long, a shorter multiplier should be applied to their claim. So, in the case of a child, the period of dependency would be expected to cease when the child reached the age of 18 or ceased full- time education.

Answer 284

A claim under the 1976 Act is dependent on the original cause of action by the deceased person against the defendant. In order to bring a claim under the 1976 Act claimants have to be able to show that, had the deceased survived, the deceased would have been able to bring a claim against the defendant themselves. Therefore, the defendant must have committed a tort against the deceased. Any defence which was available to defeat the original claim will also defeat the 1976 Act claim. In the case of the defence of contributory negligence, if the deceased’s own damages would have been reduced, damages under the 1976 Act will also be reduced There are three possible claims under the 1976 Act, which are considered below: * A claim on behalf of dependants for loss of dependency. * A claim for damages for bereavement – limited to certain persons only. * A claim for funeral expenses – if paid by the dependants.

Answer 285

In order to claim damages for loss of dependency, a person must satisfy two requirements: * they must fall within the class of dependants as listed in the 1976 Act (it includes current and former married spouses/ civil partners, cohabitees who have lived together for at least two years, parents, children, siblings; the list is definitive, so that if a person does not fall within it, they cannot make a claim); and * they must have been actually financially dependent on the deceased (they must show that they had a reasonable expectation of pecuniary benefit from the deceased).

Answer 286

The only people who can claim damages for bereavement are: * the wife, husband or civil partner of the deceased; * the parents (or mother if illegitimate) of a minor who was never married or a civil partner.

Answer 287

Cost of the deceased funeral (if paid for by the estate) (calculated using receipts)