Tort law Flashcards
What is the three-stage approach used to establish a duty of care?
The three-stage approach involves: 1) Foreseeability of harm - it must be reasonably foreseeable that the defendant’s lack of care would cause harm to the claimant. 2) Proximity - there must be a relationship of sufficient closeness between the claimant and defendant. 3) Fairness, justice, and reasonableness - it must be fair, just, and reasonable to impose a duty of care.
What policy considerations can influence the scope of claims in relation to duty of care?
Policy considerations such as floodgates, insurance, crushing liability, deterrence, maintenance of high standards, and defensive practices can influence the scope of claims in relation to duty of care. These considerations can narrow or broaden the scope of claims depending on the prevailing legal climate.
How does the court exercise judgment when deciding whether to recognize a duty of care in a novel type of case?
When deciding whether to recognize a duty of care in a novel type of case, the court exercises judgment based on what is fair, just, and reasonable. This involves considering the impact of the decision socially, politically, and economically on society as a whole.
What is the role of analogy with established authority in determining a duty of care?
Analogy with established authority involves drawing comparisons between the legally significant features of earlier cases and the novel case at hand. This helps in determining whether a duty of care should be recognized. Proximity, as seen in previous cases, remains an important factor in establishing duty.
When is it necessary to establish a duty of care with no clear precedent?
It is necessary to establish a duty of care with no clear precedent in novel types of cases where there is no established duty. In such cases, the courts need to decide whether a duty of care should be recognized by using the three-stage approach and developing the scope of duty incrementally, based on analogy with established authorities.
What are the key considerations when ascertaining if a duty of care is owed?
When ascertaining if a duty of care is owed, key considerations include existing authorities that have already established a duty of care in the situation being considered. If there is no such precedent, drawing analogies with existing cases and ensuring harm is objectively reasonably foreseeable are important.
What is the general rule regarding liability for omissions?
The general rule is that the law of tort only imposes liability on those who cause injury or damage to another. No duty is imposed on a mere failure to act, otherwise known as an omission.
What are some exceptions to the general rule of liability for omissions?
Some exceptions to the general rule include situations where there is a statutory duty, a contractual duty, the defendant has sufficient control over the claimant, the defendant assumes responsibility for the claimant’s welfare, or the defendant creates the risk through an omission.
There is a duty to act positively in tort if a person has some sort of power or control over the
other person or object. This special relationship of control could arise in several different
ways, eg:
*
employer and employee;
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schools and children;
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parents and children;
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instructors and pupils.
What factors should be considered when determining if a duty of care should be imposed in relation to an omission?
When determining if a duty of care should be imposed in relation to an omission, factors such as foreseeability of harm, proximity between the parties, and whether imposing a duty would be fair, just, and reasonable should be considered. Existing authorities and analogies with existing cases can also be helpful in making this determination.
What duty of care do emergency services owe in relation to omissions?
The ambulance service, which is regarded as part of the health service, owes a duty of care to respond to a 999 call within a reasonable time
Under what circumstances does the fire brigade owe a duty of care?
The fire brigade owes no duty of care to attend a fire, but if they do attend a fire, they owe a duty not to make the situation worse through a positive act.
Does the police owe a duty of care to respond to emergency calls?
The police owe no duty of care to respond to emergency calls. However, they can owe a duty in other circumstances.
What factors should be considered when determining if a duty of care is owed?
When determining if a duty of care is owed, factors such as precedents, foreseeability, ‘proximity’, and what would be fair, just, and reasonable should be considered. The relationship between the claimant and the defendant (the proximity) is also important.
What is the general rule in relation to acts of third parties and duty of care?
As a general rule, the law of tort only imposes liability on those who directly cause injury or damage to another. No duty is imposed on a failure to prevent a third party from causing harm to another. However, there are exceptions to this general rule where a positive duty to act to prevent harm by a third party may be imposed.
What are the exceptions to the general rule regarding acts of third parties and duty of care?
A
The exceptions to the general rule include situations where there is sufficient proximity between the defendant and claimant or between the defendant and third party, where the defendant created the danger, or where the risk was on the defendant’s premises. These exceptions may impose a duty to act to prevent harm caused by a third party.
How can a duty of care be established in cases involving acts of third parties?
When ascertaining if a duty of care is owed, one should consider whether there is any precedent that has already established a duty of care in the situation being considered. If not, one should consider whether a duty should be imposed by drawing analogies with existing cases and applying the Caparo three-stage test of foreseeability, proximity, and fair just and reasonableness
What is the significance of proximity in cases involving acts of third parties?
Proximity plays a prominent role in determining whether a duty of care should be imposed in cases involving acts of third parties. It involves examining the relationship between the claimant and the defendant, as well as the proximity between the defendant and the third party. Proximity is an important consideration when establishing a duty of care.
What are the four categories in which the exceptions to the general rule regarding acts of third parties can be categorized?
The exceptions to the general rule can be categorized into four categories: (1) Sufficient proximity between the defendant and claimant, (2) Sufficient proximity between the defendant and third party, (3) The defendant created the danger, and (4) The risk was on the defendant’s premises.
How can existing cases be used as precedent in establishing a duty of care in cases involving acts of third parties?
A
Existing cases can be used as precedent in establishing a duty of care if the facts of the case being considered are the same or very similar to the precedent cases. By drawing analogies with existing cases and applying the Caparo three-stage test, a duty of care can be established incrementally.
What are the circumstances in which party A can be held to owe a duty to party B in relation to harm caused by a third party?
The circumstances in which party A can be held to owe a duty to party B in relation to harm caused by a third party include: (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.
How can a duty of care be imposed based on the finding of proximity?
In many cases, a duty of care is imposed based on the finding of proximity between the defendant and the claimant or third party. This finding of proximity can be based on an assumption of responsibility.
What factors should be considered when determining if a duty of care is owed?
When determining if a duty of care is owed, factors such as precedents, foreseeability, ‘proximity’, and what would be fair, just, and reasonable should be considered. The relationship between the claimant and the defendant (the proximity) and the defendant and third-party are also important.
What should be done when there is no precedent to determine if a duty of care is owed?
When there is no precedent, one should consider whether a duty should be imposed by drawing analogies with existing cases. Factors such as foreseeability, ‘proximity’, and what would be fair, just, and reasonable should be taken into account during this process.
What are the complicating factors in ascertaining whether public bodies owe a duty of care?
The complicating factors in ascertaining whether public bodies owe a duty of care are: a) Many public bodies derive their powers or duties from statutes, which can impact the court’s findings in relation to duty. b) When deciding whether to develop the law of negligence into a new area, the court must consider what is fair, just, and reasonable, taking into account policy considerations. Public bodies often present different concerns in this regard compared to individuals.
What is the relevance of powers or duties derived from statutes in determining the liability of public bodies?
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.
What are some policy considerations when imposing a duty of care on public bodies?
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.
What are some examples of duties imposed on public bodies?
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.
What is the significance of the Mulcahy v Ministry of Defence case in relation to soldiers in battle conditions?
The Mulcahy v Ministry of Defence case established that the army does not owe a duty to soldiers in battle conditions during active combat.
What factors determine whether a public body owes a duty of care?
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
Does a public body automatically have a duty of care based on its statutory duty or power to act?
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.
What may prevent a common law duty of care from arising in negligence for a public body?
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.
When considering whether public bodies owe a duty of care, the starting point should be…
…to apply the same principles that are applicable to private individuals
What are the two stages for determining whether D has breached their duty?
(i) establishing the standard of care expected by the defendant; and
(ii) examining whether the defendant has fallen below that standard of care
What is the general rule for breach of their duty?
The general rule is that a defendant must behave as a reasonable person would in all the circumstances.
How is breach assessed for professionals?
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.
How is breach assessed for children?
Children need only reach the standard of a reasonable child of their age.
Can the standard for breach be adjusted?
The standard required may be adjusted in certain circumstances to take into account sudden illness / disability which the defendant was reasonably unaware of
What do the court consider when assessing whether defendant has fallen below that standard of care?
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
What is the state of the art defence?
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.
How is sport assessed as a factor for standard of care?
nothing short of reckless disregard for the claimant’s safety would constitute a breach
What is the burden of proof?
The claimant must prove breach on the balance of probabilities.
What can C rely on?
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).
What is the starting point for the professional standard of care?
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.
What are doctors supposed to do when advising in relation to risks?
Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments.
The thing speaks for itself?
The court held that the three conditions for the application of the maxim ‘res ipsa loquitur’
are:
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The thing causing the damage must be under the control of the defendant or someone for
whom the defendant is responsible.
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The accident must be such as would not normally happen without negligence.
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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.
What happens if D has a crime conviction?
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.
What test is used for establishing factual causation?
‘but for’ test
What is the test for factual causation in clinical negligence?
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.
What happens if the ‘but for’ test cannot be satisfied?
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.
when the courts might apply the material contribution test and what the claimant must prove in order to satisfy the test?
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.
Which of the following most accurately explains when the courts might apply the material increase in risk test and what the claimant must prove in order to satisfy the test?
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.
When is Apportionment used?
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.
What three types of intervening acts can break the chain of causation that occur after the breach?
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.
‘similar in type’ rule?
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.
Egg-shell skull rule?
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.
What is the primary liability of employers at common law?
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.
What is the difference between employers’ primary liability and vicarious liability?
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.
What factors are considered when determining if an employer is vicariously liable for the torts committed by an employee?
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.
What does the duty of care owed by employers to employees entail?
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.
How can an employer establish consent as a defence in an employment context?
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’.
Can a customer sue a supermarket in employers’ primary liability?
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.
Why is the duty of care imposed on employers considered personal and non-delegable?
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.
What is the employer’s indemnity in vicarious liability situations?
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.
What is an example of contributory negligence in an employment context?
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.
What is the test for determining if there is a relationship akin to employment for the purpose of establishing vicarious liability?
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.
What is the duty of care owed by employers to their employees?
The duty of care owed by employers to their employees is to take reasonable precautions to ensure their safety.
What is the economic reality test used for in determining employment status?
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.
What is the difference between a contract of service and a contract for services?
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.
What are the elements required to establish vicarious liability?
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.
What is the close connection test in vicarious liability?
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.
What factors are considered when determining if someone is an employee for the purposes of tort law?
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.
What is the general rule regarding vicarious liability when an employer lends an employee to another employer?
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.
What is an example of vicarious liability in an employment context?
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.
What is the rebuttable presumption in determining vicarious liability?
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.
Dual liability?
Where to employers have the same standard of control of D so both are vicariously liable.
Qs to ask for whether there is a safe system for work?
The Court went on to say that in deciding this threshold question the court should consider:
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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
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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.
Main defences for employer?
The main defences raised by an employer are likely to be consent (voluntary assumption of
risk) and contributory negligence.
Requirements for vicarious liability?
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The worker must be an employee (or in a relationship akin to employment).
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The employee must have committed a tort.
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The employee’s tort must have been committed in the course of his employment.
How can an employer be vicariously liable for an intentional tort (e.g. fraud)?
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.
Who are considered occupiers and what duty of care do they owe?
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.
What is the purpose of the Occupiers’ Liability Act 1984?
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.
Under the Occupiers’ Liability Act 1957, what is the higher standard of care owed to child visitors?
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.
Under the Occupiers’ Liability Act 1984, what type of damages are recoverable?
Only personal injury is recoverable under the Occupiers’ Liability Act 1984, not property damage.
What factors determine whether an occupier is liable for an accident on their premises?
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.
What factors determine the standard of care for an occupier’s duty to visitors?
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.
What is an example that illustrates the higher standard of care owed to child visitors under the Occupiers’ Liability Act 1957?
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.
What factors are considered when analyzing breach of duty under the Occupiers’ Liability Act 1984?
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.
How did Lord Denning categorize occupiers?
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.
What are the defences available under the Occupiers’ Liability Act 1984?
The defences available under the Occupiers’ Liability Act 1984 are consent, contributory negligence, and illegality.
What is the lower standard of care owed to persons entering premises in the exercise of their calling under the Occupiers’ Liability Act 1957?
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.
What is the significance of control in determining who is an occupier?
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
Under what circumstances can an occupier be considered not in breach of duty?
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.
What is the duty of care owed by occupiers to visitors under the OLA 1957?
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.
What are the restrictions on an occupier’s freedom to use exclusion clauses under the Occupiers’ Liability Act 1984?
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.
Can there be multiple occupiers of the same premises?
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.
What is the difference between a warning notice and an exclusion clause?
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.
What is the definition of ‘premises’ under the Occupiers Liability Act 1957?
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.
What is the definition of a trespasser/non-visitor under the Occupiers’ Liability Act 1984?
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
What are the potential defences that can be relied upon in an Occupiers’ Liability Act 1957 claim?
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.
Who are considered visitors under the Occupiers Liability Act 1957?
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.
What factors are considered in determining the common duty of care under the Occupiers’ Liability Act 1957?
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.
What are the restrictions on an occupier’s freedom to use exclusion clauses under the Unfair Contract Terms Act 1977 (UCTA 1977)?
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.
What are the conditions that need to be satisfied to establish a duty of care owed by an occupier to a trespasser/non-visitor?
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.
How can an occupier limit permission for visitors through notice?
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.
What is the role of warnings in discharging the duty of care under the Occupiers’ Liability Act 1957?
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.
What are the restrictions on an occupier’s freedom to use exclusion clauses under the Consumer Rights Act 2015 (CRA 2015)?
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.
What is implied permission and how can it be limited?
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.
What is the standard of care for an occupier’s duty to a trespasser/non-visitor?
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.
What are the common law restrictions on the use of exclusion clauses in occupiers’ liability cases?
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.
What is lawful authority and who can enter premises with lawful authority?
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.
What is the purpose of Section 3 of the Occupiers’ Liability Act 1957?
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.
What is contractual permission and what duty of care is owed to visitors with contractual permission?
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.
How are causation and remoteness addressed in claims under the Occupiers’ Liability Act 1957?
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.
Under the Occupiers’ Liability Act 1957, who is considered a stranger to the contract?
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.
What is the standard of care owed by an occupier to a visitor?
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.
What is the purpose of Section 3(1) of the Occupiers’ Liability Act 1957?
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.
How does an occupier’s awareness of a visitor’s vulnerability affect the duty of care?
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.
What is the legal test for the defence of volenti in an Occupiers’ Liability Act 1957 claim?
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.
What are some examples of personal characteristics that may affect the standard of care owed by an occupier?
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.
What are the restrictions on the use of exclusion clauses under the Unfair Contract Terms Act 1977 (UCTA 1977)?
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.
What is the legal test for the defence of contributory negligence in an Occupiers’ Liability Act 1957 claim?
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.
What is the loss for which an occupier is liable under the Occupiers’ Liability Act 1984?
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.
Can an occupier limit their duty of care to visitors?
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.
What is the legal test for the defence of illegality in an Occupiers’ Liability Act 1957 claim?
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.
