Tort law

Question 1

Name the stages of negligence

Answer 1

Negligence has a three stage test:
- Did the D owe a duty of care?
- Was this duty breached?
- Did the breach cause damage to the C?

Question 2

Stage 1 of negligence

Answer 2

-Firstly it must be proved that the D owes the C a duty of care.
- Donoghue vs Stevenson established the test for Duty of Care through the neighbour principle, you will owe your neighbour a duty to your neighbour in law- which means you owe a duty to anyone affected by your actions.
-This is updated in the case of Robinson vs CCWY. This stated when there is an obvious relationship, then it is fair just and reasonable to establish this duty.

Question 3

Full test for negligence stage 1- when duty is not obvious

Answer 3

• In a novel situation, the Caparo test must be used.
  1- Was the loss reasonably foreseeable (Kent vs Griffiths)
  2- Was there a relationship of close proximity between the D and C (Bourhill vs Young)
  3- Is it fair, just, and reasonable to impose the duty (Hill vs Chief constable of West Yorkshire Police)

Question 4

Stage 2 negligence introduction (Part 1)

Answer 4

• The D must have breached their duty of care to the C.
• This is an objective test. Alderson B in (Blyth vs Birmingham Waterworks) defined a breach as, “Doing something that a reasonable man would not do or not doing something that the reasonable man would do”.
  -Therefore, the defendant will be in breach if they did not act reasonably.

Question 5

Negligence stage 2- Standards of care (Part 2)

Answer 5

• Expert/ special skill= Judged by the standards of another reasonably competent professional (Bolam vs Bolitho)
• Inexperienced/ Learner= Judged by the standards of someone experienced and competent (Nettleship vs Weston)
  -Children= Judged by the standards of another reasonably competent professional (Mullins vs Richards)
  -If D does not fall into any category= Judged to the standard of another reasonable man performing the same task (Vaughan vs Menlove)

Question 6

Negligence stage 2- risk factors (Part 3)

Answer 6

• Risk factors lower or raise the standard of care required by the defendant. There are three types:
  1- Probability of Harm= needs to take precaution against bigger risks, or those that happen more frequently (Bolton vs Stone)
  2- Seriousness/ Magnitude of the risk= More serious the risk, more precaution needs to be taken (Paris vs Stepney Council)
  3- Cost/ Practicality of taking precaution (Latimer)
• Side rule= Benefits of the risk (Watt vs Hertfordshire council)
• Conclude stage 2

Question 7

Negligence stage 3 part 1Negligence stage 3 intro and summary

Answer 7

• It must be proved that the breach of duty has caused the damage to the C. This is an issue of causation
• Factual causation (Barnett vs Chelsea hospital)
  -Legal causation- remoteness of the damage (Wagon mound no.1)
• Must be no intervening acts which breaks the chain of causation - Thin skull rule (Robinson vs Post office/ Smith vs Leech brain co)
• Conclude stage 3 and all three stages.

Question 8

Negligence stage three part 1

Answer 8

-Factual causation asks was the D the cause of the damage in fact, so apply the “but for” test
- “But for the D’s actions, would the damage have occurred anyway ? (Barnett vs Chelsea Hospital )

Question 9

Negligence stage 3 part 2

Answer 9

• Legal causation- relates to the remoteness of the damage, meaning whether the damage to the C was reasonably foreseeable or was it too remote. If the damage was unforeseeable, then it my be too remote for the D to be the cause in law (Wagon Mound No1)
  
  • Side rule- D need not predict the precise way in which the injury was caused so long as injury of the same type was foreseeable (Hughes vs Lord Advocate)

Question 10

Negligence stage 3 part 3

Answer 10

• There must be no intervening acts which break the chain of causation.
  
  • Thin skull rule- (Robinson v Post office/ Smith vs Leech Brain Co): The D must take his victim/ claimant as he finds them.

Question 11

Negligence risk factor 1

Answer 11

Probability of harm- More care would need to be taken if there is a higher probability of harm. The reasonable man does not need to take precautions against smaller risks, but does against bigger risks, or risks that are more likely to happen (Bolton vs Stone)

Question 12

Negligence risk factor 2

Answer 12

Seriousness/ magnitude of the risk- The court needs to consider how serious the injury could potentially be, the bigger the risk of a serious injury, then the more care that needs to be taken (Paris vs Stepney Council)

Question 13

Negligence risk factor 3

Answer 13

The cost and practicality of the precautions. If the cost of taking precautions to eliminate the risk is too great, the D may not be in breach of duty (Latimer)
- Side rule= possible benefits to the risk(Watt vs Hertfordshire council)

Question 14

Psychiatric injury introduction and definition

Answer 14

The C may be able to claim for psychiatric injury. This is when the C suffers a psychiatric injury (rather than physical or property damage), caused by the D.
- There are two stages to prove: the psychiatric injury must be recognised and the type of victim (Primary or secondary)

Question 15

Stage 1 of psychiatric injury

Answer 15

• The C must be suffering from a recognised psychiatric injury, not ordinary human emotions. (Reilly vs health authority)
• The claimant must show that this illness was caused by a traumatic event or an “Assault on the senses” - (Sion vs Hampstead health authority)

Question 16

Stage 2 of psychiatric injury intro and definitions

Answer 16

-This stage asks whether the D was a primary or a secondary victim.
- A primary victim is anyone who fears for their own physical safety or is in the zone of danger.
- A secondary victim is an unwilling witness to a traumatic incident, but is in no physical danger.

Question 17

Stage 2 of psychiatric injury- primary victim test

Answer 17

Page vs Smith established a two stage test for primary victims:
-1- Primary victims do not have to show that the psychiatric injury was foreseeable, merely that some kind of personal injury was foreseeable.
-2- The primary victim does not have to be a person a normal fortitude

Question 18

Stage two of psychiatric injury- secondary victims part one

Answer 18

Alcock established that the secondary victim must meet the following control mechanisms in order to make a claim:
-1- The victim must have close ties of love and affection to the primary victim.
-2- They must have witnessed the accident or its immediate aftermath with their own unaided senses. McLaughlin vs O Brian stated this required the primary victim to be in their post accidental state, and not cleaned up.

Question 19

Stage 2 of psychiatric injury - secondary victims test part 2

Answer 19

-3- D must have directly perceived the accident or its immediate aftermath, involving a family member
-4- It is sufficient for the C who was present at the scene of the accident or its immediate aftermath to show that there is a link between witnessing the accident and the illness suffered.

Question 20

Side rules for stage 2 of psychiatric injury

Answer 20

-1- Rescuers- if they are a primary victim, then they can claim. If they are a secondary victim then they must satisfy the Alcock control mechanisms (Chadwick vs British transport)
-2- Bystanders- Mcfarlane stated that bystanders cannot claim unless they satisfy the Alcock control mechanisms

Question 21

nuisance intro and definition

Answer 21

• The C may be able to sue the D for nuisance due to…
• Private nuisance is the “Unlawful (unreasonable) interference with a persons use or enjoyment of land”. The focus is on whether the interference is unreasonable- If so, it will be a nuisance and will be actionable.

Question 22

Nuisance stage 1

Answer 22

• We first must establish the relevant parties to a claim. The claimant must demonstrate an appropriate legal interest in the land affected (Hunter vs Canary Wharf)- they are usually the owner or the tenant.
• The D is the creator of the nuisance. He does not need to own or occupy the land that the nuisance is emitting from. It does not matter if the D has taken reasonable care to not be a nuisance. In Cambridge Water, Lord Goff said,” The fact that the defendant has taken reasonable care will not exonerate him”.
  -Side rule- This could also be a local authority (Jones Ltd vs Portsmouth City Council)

Question 23

Nuisance stage 2 intro and summary

Answer 23

-There are four key factors to decide whether the interference is considered as unreasonable and therefore, amounts to a nuisance.
1- Location
2-Duration
3- Motive and Malice of the D
4- Sensitivity of the D
- Side rule- Interference with recreational activities (Hunter vs Canary Wharf)

Question 24

Private Nuisance factor 1

Answer 24

• Firstly, the location of the interference must be considered- (Leeman vs Montague)/(Hirose Electrical vs Peak Ingredients)
• The question to ask here is “Has the character of the neighborhood changed?”
• Apply to the scenario , considering what type of area the interference is in (Industrial, residential, a mix)
• Side rule- Damage to Land- If the nuisance causes physical damage to the C’s land, then the issue of location is irrelevant (St Helens Smelting vs Tipping)

Question 25

Private nuisance factor 2

Answer 25

- Secondly, the more long lasting the interference, the more likely to be a nuisance (Cunard vs Antifyre). Private nuisances are interferences for a substantial amount of time. - Side rule- time of day- even if the interference was short in duration, it could still be unreasonable due to the time of day (De Keyser's royal hotel) - Side rule 2- Damage to land- and interference which is short in duration may still be W nuisance if it causes damage to the land (Crown river cruises vs Kimbolton fireworks)

Question 26

Private nuisance factor 3

Answer 26

-Thirdly, if the activity of the defendant is motivated by malice, it is likely to be unreasonable (Christie v Davey)

Question 27

Private Nuisance Factor 4

Answer 27

-sensitivity of the D= If the claimant is abnormally sensitive or their use of land is particularly sensitive, the defendant will not be liable unless the activity would amount to a nuisance to a reasonable person using the land in a normal manner (Robinson vs Kilvert)

Question 28

Private Nuisance stage 2 side rule

Answer 28

- If there is interference with the defendants recreational activities, it will usually be considered as unreasonable, and therefore not a nuisance (Hunter vs Canary Wharf)

Question 29

Defences for nuisance

Answer 29

- Statutory authority- Where an act of parliament gives permission for the nuisance (Allen vs Gulf Oil) - Planning permission- in (Gillingham council vs Medway)- planning permission could mean that the character of the neighborhood has changed and therefore the interference is now reasonable. - Prescription- if the claimant tolerates the nuisance for a substantial amount of time (20 years) before making a complaint. Vole it-non-fit-injuria - This is where the C consents to the nuisance - Contributory negligence- Reduces compensation due to their own responsibility for the damage. - Moving to the nuisance= If the D is only suffering because they moved closer to the problem, this is not a nuisance (Miller vs Jackson)

Question 30

Remedies for nuisance

Answer 30

- Compensatory damages- may be awarded where the damage is quantifiable - Injunction= Stops the D from doing something: -(Miller vs Jackson)- Courts can refuse if not in the public interest, and award damages instead -(Kennaway vs Thompson)- Can be tailored to meet the exacts circumstances of the case. -Abatement- where the C is allowed to take reasonable steps to lessen the nuisance themselves- E.G- chopping down branches of a tree (Lemmon vs Webb)

Question 31

Economic loss into part 1- consequential

Answer 31

Consequential economic loss is a loss in money, which is a direct consequence of physical damage caused by negligent acts. This loss is recoverable in tort law (Spartan Steel vs Martin).

Question 32

Economic loss intro part 2

Answer 32

Pure economic loss is a loss in money which is not consequent on physical damage to the claimant. This loss is not recoverable under Tort Law (Spartan Steel vs Martin), unless it is due to a negligent misstatement. - Apply relevant loss, carry on with negligent misstatement if needed.

Question 33

Negligent Misstatement intro

Answer 33

- A negligent Misstatement is where the D makes a statement, the claimant relies on this advice and as a result suffers a pure economic loss. - Hedley Byrne vs Heller sets out a four stage test which if proven gives rise to a special relationship between the two parties (Caparo vs Dickman).

Question 34

Negligent Misstatement stage 1

Answer 34

- The D must possess a special skill relating to the advice given- this is based on the skill and judgement of the D and the reliance placed upon it. - Side rule- Social situations (Chaudry vs Prabhaker)- Usually not liable, unless they possess the relevant expertise.

Question 35

Stage 2 of negligent misstatement

Answer 35

- D knows that it was highly likely that the C will rely on that advice. -In mutual life vs Evatt it was held that a duty arises when the D is in the business of giving that advice, or had professed to having a special skill or knowledge in the field in which the advice was given.

Question 36

Stage 3 of negligent misstatement

Answer 36

- C must rely on the advice and suffer a financial loss as a result

Question 37

Stage 4 Negligent Misstatement

Answer 37

- It must be reasonable for the C to rely on the advice. - If there is proximity between parties then it is more reliable for the C to rely on the advice of the D (Caparo vs Dickman) - Also if the D is in a position of power then it is more reasonable (White vs Jones) - Side rule- Voluntary assumption of duty- giving advice when nobody asked for it (Hedley Byrne vs Heller)

Question 38

Rylands vs Fletcher definition/intro

Answer 38

Where the D brings something onto their land and stores it there. It escapes and causes damage to the claimants land. This is a strict liability offence so there s no defence just because the D acted with care and attention. There are five stages to prove.

Question 39

Rylands vs fetcher stage 1

Answer 39

-Firstly, there must be the bringing of a dangerous thing onto the the land, which must accumulate on the D's land. - The D must bring something hazardous onto their land and keep it there. If it is naturally present, such as weeds in the case of (Giles vs Walker), it is not an accumulation. - The thing must be accumulated for the D's own purpose (Dunne vs North West Gas Board) -Side rule- the thing that escapes does not need to be the thing accumulated (By product)

Question 40

Stage 2 of Rylands vs Fletcher

Answer 40

- The thing the D brings onto the land must be likely to cause mischief if it escapes. It is a test of foreseeability- the damage must be foreseeable if the thing escaped, not that the thing itself is inherently dangerous (Hale vs Jenning Bros)

Question 41

Stage 3 Rylands vs Fletcher

Answer 41

- Thirdly, the thing stored must escape from a place that the D had occupation of, or control over, to a place which is outside of his or her occupation or control (Read vs Lyons)

Question 42

Stage 4 of Rylands vs Fletcher

Answer 42

Fourthly, there must be a non-natural use of the land which means D has brought something onto the property that was not naturally there. Transco defined non natural use as a use which is” extraordinary and unusual” or as a “special use bringing increase danger to others”. This can be due to quantity, volume, and place where it is stored.

Question 43

Stage 5 of Rylands vs Fletcher

Answer 43

Finally, the damage must be of a foreseeable type and bot too remote (Cambridge water). If the D cannot predict it, they cannot prevent it.

Question 44

Defences for Rylands vs Fletcher

Answer 44

- Acts of a third party- If not able to reasonably foresee actions of third party ( Perry vs Kendricks) - Act of God- Natural causes that no human foresight could guard against (Greenock) -Statutory authority - Default of C- act of the C - Consent from C

Question 45

Remedies for Rylands vs Fletcher

Answer 45

-Compensatory damages - Side rule- Transco vs Stockport- personal injury cannot be claimed for under RvF - Side rule- economic loss (Weller vs Foot and Mouth disease research institute- No liability for pure economic loss.

Question 46

Vicarious liability introduction/ definition

Answer 46

- The D may be liable for the tortfeasors actions under vicarious liability -Vicarious liability is where the employer (the D) is liable for the negligence of employees (the tortfeasor). Two conditions must be proved as clarified in (Trustees of Barry's congregation vs BXB).

Question 47

Vicarious liability stage 1 part 1- obvious cases

Answer 47

- Stage one asks whether the worker is an employee or an independent contractor. For obvious cases, we use the multiple test: Ready mix concrete vs Minister of pensions- held the following factors were important when establishing who is an IC or an employee: 1- Whether a wage, national insurance, and tax is being payed 2- who provides tools/ equipment? 3- whether the worker has to obey orders 4- The exercise of control over how work is done 5- the acceptance of any business risk. 6- The power to hire/ fire replacements

Question 48

Vicarious liability stage 1 part 2- less obvious instances

Answer 48

For times when it is not obvious, we use the akin to employment test established in Christian Brothers: 1- The employer is more likely to have insurance/ be able to compensate the victim 2- The act is committed by the employee on behalf of the employer. 3- The employees activity is likely to be part of the business activity of the employer 4- The employer by employing the employee created the risk of the act being committed 5- The employee will have been under the control of the employer - or they are an IC, and the employer will not be liable

Question 49

Vicarious liability stage 2 introduction/ summary

Answer 49

- Secondly, we need to question, "Whether the employees acts were so closely connected with acts the employee was authorised to do that, it may fairly and properly be regarded as being done in the ordinary course of their employment." (Morrisons vs Various claimants) - Explain and apply all relevant factors as to whether they were or were not acting within the course of their employment -Consider side rules

Question 50

Vicarious Stage 2- when will employer be liable?

Answer 50

An employer will still be liable even if the employee was: 1- Acting excessively (Vasey) 2- Negligently (Centuries Insurance) 3- In an unauthorised way (Rose v Plenty) 4- Criminal act (Morrisons vs Mohamud) 5- abused students (Lister vs Hesley hall) - Note- if the abuse is towards an adult, it is for the courts to carefully consider on the facts, the extent of the connection between the wrongful act and the acts that the tortfeasor was authorised to do (Trustee's of Barry congregation vs BXB)

Question 51

Vicarious stage 2- when will an employer not be liable

Answer 51

- An employer will not be liable if the employee was: 1- Doing something completely unrelated to their job (Heasemans vs Clarity cleaning) 2- Committing a frolic of their own (Storey vs Ashton) 3- Personal vendetta (Morrisons vs various claimants) 4- Abuse to colleague/ adult, outside of work (Trustees of Barry congregation vs BXB)