tort part 2 Flashcards
1
Q
OL- problem question steps
A
- when does the occupiers liability act 1957 apply
- how wide is the scope of the act?
- who owes duties under the act?
- to whom does the duty apply?
- imposition of a DOC
- special rules/aspects of the DOC owed under the act?
- defences
- when does the occupiers liability act 1984 apply?
- 1984 act and the DOC
2
Q
when does the OLA 57 apply
A
- if the damage has occurred on the premises as defined in s1(3)(a)
- effectively creates certain pos obligations upon the occupier
3
Q
how wide is the scope of OLA 57
A
- this act covers dangers due to the state of the premises themselves
4
Q
who owes duties under OLA 57- wheat v lacon
A
- wheat v lacon- key issue is an element of control that one person may have over the premises
5
Q
to whom does the duty apply- OLA 57
A
- duty is owed to those who are visitors
- a visitor is someone who is either an invitee or a licensee
- Gould v mcauliffe
- lowery v walker
6
Q
Gould v mcauliffe
A
- if an occupier wishes to place limitations upon the visitor then he must take steps to bring the limitation to the visitors attention
7
Q
lowery v walker
A
- where an occupier tolerates the use by the members of the public of his property as a shortcut, it is implied that he or she grants them permission to enter
8
Q
how the 57 OLA works- imposition of DOC
A
- remember still need to show breach, causation and remoteness
- in assessing whether or not the duty has been satisfied, one must consider the following:
- is the visitor reasonably safe in using the premises for the purposes for which he was invited there?
- is the visitor safe as opposed to the premises?
- what is reasonable in the circs?
9
Q
special rules/aspects of the DOC owed under OLA 57
A
- warnings
- skilled workers
- children
10
Q
Phipps v rochester corp
A
- parents have the primary responsibility for their children
11
Q
defences for OL
A
- volenti
- cont neg
- exclusion of liability
12
Q
OL to trespassers and non-visitors under the OLA 84- BRB v Herrington
A
D owed a duty of common humanity to trespassers
13
Q
defences 84 act- ratcliff v McConnell
A
- volenti
- C climbed over the wall surrounding a swimming pool when access was prohibited after they’d been drinking
- wasn’t entitled to compensation
14
Q
problem question product liability
A
- consider liability in contract and why that would be the preferred cause of action
- consider CPA 87
- consider common law negligence where statute prevents recovery for the loss
15
Q
liability in contract
A
- powerful weapon for the claimant
- strict liability
- all losses are recoverable
- but limitations
- only buyer can sue- privity of contract
16
Q
common law- CPA 87
A
- D v S- leading case
- there needs to be fault
- this can be hard to prove which is why the CPA 87 was made
17
Q
grant v australian knitting mills
A
- intermediate examination
- the mere possibility of tampering in the product was not enough to absolve D of liability
- common law
18
Q
hollis v dow corning corp
A
risk in respect of breast implants only 0.1% but still liable under common law
19
Q
Common law summary- DvS
A
- can recover PI, property damage and consequential losses
- de minimus principle- no losses less than £275 under CPA 87 so can use it for anything under 275
- common law has a wider application
- time limits more favourable under common law
20
Q
statutory liability CPA 87 – who can sue and be sued?
A
- strict liability
- who can sue- anyone suffering damage or harm wholly or partly caused by a defective product
- who can be sued- producer/supplier
21
Q
defences- statutory liability
A
- development risks defence- a v national blood authority
- cont neg
- strict limitation periods- claims must be brought within 3 years of becoming manifest, and within 10 years of the supply of the product
22
Q
private nuisance- problem question
A
- what interest is protected
- what type of harm can you sue for
- (un) reasonable user
- 3 potential defendants
- defences
- remedies
23
Q
fearn v Tate gallery
A
- private nuisance
- about neighbour disputes/competing interests of landowners
24
Q
what interest is protected, malone v laskey, priv nuisance
A
- only those who have an interest in the land affected can sue in priv nuisance
- defendants not liable as in MvL they didnt have a proprietary interest
25
what type of harm can you sue for priv nuisance
- have to maintain the balance between the competing claims of neighbours
- physical damage
- interference with enjoyment of land
- encroachments
26
(un)reasonable user priv nuisance
- malice
- duration and frequency
- abnormal sensitivity
27
Hollywood silver fox farm v Emmett
- malice
- Emmett shot near the farm and caused the foxes to get nervous
28
spicer v smee
- one off incident can still constitute a nuisance
29
robinson v kilvert
- d not liable if there is abnormal sensitivity of the claimant
30
3 potential defendants priv nuisance
- landlord
--- unless the landlord is covenanted to repair
--- or the nuisance existed before the letting
--- or landlord expressly or impliedly authorises the notice
- occupier of land
- creator of nuisance
31
defences priv nuisance
- prescription- 20+ years
- act of a stranger
- volenti and cont neg
32
defences that are ineffective -priv nuisance
- public benefit- only relevant at remedies
- coming to the nuisance
33
miller v Jackson
- houses built on the edge of a cricket ground
- cricket balls kept landing on property
- they came to the nuisance so got damages but not injunction
34
remedies priv nuisance
- damages
- injunction- discretionary
35
remoteness of losses- priv nuisance
- same as the test in negligence- wagon mound 1- type of damage needs to be foreseeable but not the extent
36
the rule in rylands v fletcher
- 4 conditions
- priv nuisance
- dangerous thing
- accumulation
- escape
- non natural user
37
transco v stockport MBC
- dangerous thing
- anything likely to do mischief if it escapes
38
accumulation
- rule doesnt apply to things which grow or accumulate naturally but will apply to things which d deliberately accumulates
39
read v Lyons
- in the absence of any proof of negligence on behalf of D or an escape of dangerous thing, there was no cause of action on which the claimant could succeed
40
defences under rylands v fletcher
- cont neg
- consent
- act of stranger
41
protected interests rylands v fletcher
- prop damage
- personal injury
- Econ loss
42
public nuisance
- primarily a crime and acts as a general measure of public protection
- same conduct can give rise to both a public and private nuisance- Halsey v esso
43
2 requirements for a public nuisance action
- persons affected by the nuisance constitute the public or a section of the public
- claimant has suffered particular/special damage over and above the annoyance and inconvenience suffered by the public at large
44
particular or special damage- public nuisance
- economic loss
- inconvenience
- property damage or personal injury
45
pub nuisance- what public rights are protected
- obstruction of the highway- doesnt have to be blocked- can be unreasonably obstructed- Lyons sons v Gulliver
- danger on the highway
- dangers close to the highway
46
- when does the occupiers liability act 1957 apply
- how wide is the scope of the act?
- who owes duties under the act?
- to whom does the duty apply?
- imposition of a DOC
- special rules/aspects of the DOC owed under the act?
- defences
- when does the occupiers liability act 1984 apply?
- 1984 act and the DOC
OL- problem question steps
47
- if the damage has occurred on the premises as defined in s1(3)(a)
- effectively creates certain pos obligations upon the occupier
when does the OLA 57 apply
48
- this act covers dangers due to the state of the premises themselves
how wide is the scope of OLA 57
49
- wheat v lacon- key issue is an element of control that one person may have over the premises
who owes duties under OLA 57- wheat v lacon
50
- duty is owed to those who are visitors
- a visitor is someone who is either an invitee or a licensee
- Gould v mcauliffe
- lowery v walker
to whom does the duty apply- OLA 57
51
- if an occupier wishes to place limitations upon the visitor then he must take steps to bring the limitation to the visitors attention
Gould v mcauliffe
52
- where an occupier tolerates the use by the members of the public of his property as a shortcut, it is implied that he or she grants them permission to enter
lowery v walker
53
- remember still need to show breach, causation and remoteness
- in assessing whether or not the duty has been satisfied, one must consider the following:
- is the visitor reasonably safe in using the premises for the purposes for which he was invited there?
- is the visitor safe as opposed to the premises?
- what is reasonable in the circs?
how the 57 OLA works- imposition of DOC
54
- warnings
- skilled workers
- children
special rules/aspects of the DOC owed under OLA 57
55
- parents have the primary responsibility for their children
Phipps v rochester corp
56
- volenti
- cont neg
- exclusion of liability
defences for OL
57
D owed a duty of common humanity to trespassers
OL to trespassers and non-visitors under the OLA 84- BRB v Herrington
58
- volenti
- C climbed over the wall surrounding a swimming pool when access was prohibited after they'd been drinking
- wasn't entitled to compensation
defences 84 act- ratcliff v McConnell
59
- consider liability in contract and why that would be the preferred cause of action
- consider CPA 87
- consider common law negligence where statute prevents recovery for the loss
problem question product liability
60
- powerful weapon for the claimant
- strict liability
- all losses are recoverable
- but limitations
- only buyer can sue- privity of contract
liability in contract
61
- D v S- leading case
- there needs to be fault
- this can be hard to prove which is why the CPA 87 was made
common law- CPA 87
62
- intermediate examination
- the mere possibility of tampering in the product was not enough to absolve D of liability
- common law
grant v australian knitting mills
63
risk in respect of breast implants only 0.1% but still liable under common law
hollis v dow corning corp
64
- can recover PI, property damage and consequential losses
- de minimus principle- no losses less than £275 under CPA 87 so can use it for anything under 275
- common law has a wider application
- time limits more favourable under common law
Common law summary- DvS
65
- strict liability
- who can sue- anyone suffering damage or harm wholly or partly caused by a defective product
- who can be sued- producer/supplier
statutory liability CPA 87 -- who can sue and be sued?
66
- development risks defence- a v national blood authority
- cont neg
- strict limitation periods- claims must be brought within 3 years of becoming manifest, and within 10 years of the supply of the product
defences- statutory liability
67
- what interest is protected
- what type of harm can you sue for
- (un) reasonable user
- 3 potential defendants
- defences
- remedies
private nuisance- problem question
68
- private nuisance
- about neighbour disputes/competing interests of landowners
fearn v Tate gallery
69
- only those who have an interest in the land affected can sue in priv nuisance
- defendants not liable as in MvL they didnt have a proprietary interest
what interest is protected, malone v laskey, priv nuisance
70
- have to maintain the balance between the competing claims of neighbours
- physical damage
- interference with enjoyment of land
- encroachments
what type of harm can you sue for priv nuisance
71
- malice
- duration and frequency
- abnormal sensitivity
(un)reasonable user priv nuisance
72
- malice
- Emmett shot near the farm and caused the foxes to get nervous
Hollywood silver fox farm v Emmett
73
- one off incident can still constitute a nuisance
spicer v smee
74
- d not liable if there is abnormal sensitivity of the claimant
robinson v kilvert
75
- landlord
--- unless the landlord is covenanted to repair
--- or the nuisance existed before the letting
--- or landlord expressly or impliedly authorises the notice
- occupier of land
- creator of nuisance
3 potential defendants priv nuisance
76
- prescription- 20+ years
- act of a stranger
- volenti and cont neg
defences priv nuisance
77
- public benefit- only relevant at remedies
- coming to the nuisance
defences that are ineffective -priv nuisance
78
- houses built on the edge of a cricket ground
- cricket balls kept landing on property
- they came to the nuisance so got damages but not injunction
miller v Jackson
79
- damages
- injunction- discretionary
remedies priv nuisance
80
- same as the test in negligence- wagon mound 1- type of damage needs to be foreseeable but not the extent
remoteness of losses- priv nuisance
81
- 4 conditions
- priv nuisance
- dangerous thing
- accumulation
- escape
- non natural user
the rule in rylands v fletcher
82
- dangerous thing
- anything likely to do mischief if it escapes
transco v stockport MBC
83
- rule doesnt apply to things which grow or accumulate naturally but will apply to things which d deliberately accumulates
accumulation
84
- in the absence of any proof of negligence on behalf of D or an escape of dangerous thing, there was no cause of action on which the claimant could succeed
read v Lyons
85
- cont neg
- consent
- act of stranger
defences under rylands v fletcher
86
- prop damage
- personal injury
- Econ loss
protected interests rylands v fletcher
87
- primarily a crime and acts as a general measure of public protection
- same conduct can give rise to both a public and private nuisance- Halsey v esso
public nuisance
88
- persons affected by the nuisance constitute the public or a section of the public
- claimant has suffered particular/special damage over and above the annoyance and inconvenience suffered by the public at large
2 requirements for a public nuisance action
89
- economic loss
- inconvenience
- property damage or personal injury
particular or special damage- public nuisance
90
- obstruction of the highway- doesnt have to be blocked- can be unreasonably obstructed- Lyons sons v Gulliver
- danger on the highway
- dangers close to the highway
pub nuisance- what public rights are protected
