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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
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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
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3
Q

how wide is the scope of OLA 57

A
  • this act covers dangers due to the state of the premises themselves
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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
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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
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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
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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
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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?
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9
Q

special rules/aspects of the DOC owed under OLA 57

A
  • warnings
  • skilled workers
  • children
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10
Q

Phipps v rochester corp

A
  • parents have the primary responsibility for their children
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11
Q

defences for OL

A
  • volenti
  • cont neg
  • exclusion of liability
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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

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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
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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
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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
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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
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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
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18
Q

hollis v dow corning corp

A

risk in respect of breast implants only 0.1% but still liable under common law

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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
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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
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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
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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
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23
Q

fearn v Tate gallery

A
  • private nuisance
  • about neighbour disputes/competing interests of landowners
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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
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25
Q

what type of harm can you sue for priv nuisance

A
  • have to maintain the balance between the competing claims of neighbours
  • physical damage
  • interference with enjoyment of land
  • encroachments
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26
Q

(un)reasonable user priv nuisance

A
  • malice
  • duration and frequency
  • abnormal sensitivity
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27
Q

Hollywood silver fox farm v Emmett

A
  • malice
  • Emmett shot near the farm and caused the foxes to get nervous
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28
Q

spicer v smee

A
  • one off incident can still constitute a nuisance
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29
Q

robinson v kilvert

A
  • d not liable if there is abnormal sensitivity of the claimant
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30
Q

3 potential defendants priv nuisance

A
  • 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
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31
Q

defences priv nuisance

A
  • prescription- 20+ years
  • act of a stranger
  • volenti and cont neg
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32
Q

defences that are ineffective -priv nuisance

A
  • public benefit- only relevant at remedies
  • coming to the nuisance
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33
Q

miller v Jackson

A
  • 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
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34
Q

remedies priv nuisance

A
  • damages
  • injunction- discretionary
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35
Q

remoteness of losses- priv nuisance

A
  • same as the test in negligence- wagon mound 1- type of damage needs to be foreseeable but not the extent
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36
Q

the rule in rylands v fletcher

A
  • 4 conditions
  • priv nuisance
  • dangerous thing
  • accumulation
  • escape
  • non natural user
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37
Q

transco v stockport MBC

A
  • dangerous thing
  • anything likely to do mischief if it escapes
38
Q

accumulation

A
  • rule doesnt apply to things which grow or accumulate naturally but will apply to things which d deliberately accumulates
39
Q

read v Lyons

A
  • 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
Q

defences under rylands v fletcher

A
  • cont neg
  • consent
  • act of stranger
41
Q

protected interests rylands v fletcher

A
  • prop damage
  • personal injury
  • Econ loss
42
Q

public nuisance

A
  • 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
Q

2 requirements for a public nuisance action

A
  • 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
Q

particular or special damage- public nuisance

A
  • economic loss
  • inconvenience
  • property damage or personal injury
45
Q

pub nuisance- what public rights are protected

A
  • 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
Q
  • 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
A

OL- problem question steps

47
Q
  • if the damage has occurred on the premises as defined in s1(3)(a)
  • effectively creates certain pos obligations upon the occupier
A

when does the OLA 57 apply

48
Q
  • this act covers dangers due to the state of the premises themselves
A

how wide is the scope of OLA 57

49
Q
  • wheat v lacon- key issue is an element of control that one person may have over the premises
A

who owes duties under OLA 57- wheat v lacon

50
Q
  • 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
A

to whom does the duty apply- OLA 57

51
Q
  • if an occupier wishes to place limitations upon the visitor then he must take steps to bring the limitation to the visitors attention
A

Gould v mcauliffe

52
Q
  • 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
A

lowery v walker

53
Q
  • 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?
A

how the 57 OLA works- imposition of DOC

54
Q
  • warnings
  • skilled workers
  • children
A

special rules/aspects of the DOC owed under OLA 57

55
Q
  • parents have the primary responsibility for their children
A

Phipps v rochester corp

56
Q
  • volenti
  • cont neg
  • exclusion of liability
A

defences for OL

57
Q

D owed a duty of common humanity to trespassers

A

OL to trespassers and non-visitors under the OLA 84- BRB v Herrington

58
Q
  • volenti
  • C climbed over the wall surrounding a swimming pool when access was prohibited after they’d been drinking
  • wasn’t entitled to compensation
A

defences 84 act- ratcliff v McConnell

59
Q
  • 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
A

problem question product liability

60
Q
  • powerful weapon for the claimant
  • strict liability
  • all losses are recoverable
  • but limitations
  • only buyer can sue- privity of contract
A

liability in contract

61
Q
  • D v S- leading case
  • there needs to be fault
  • this can be hard to prove which is why the CPA 87 was made
A

common law- CPA 87

62
Q
  • intermediate examination
  • the mere possibility of tampering in the product was not enough to absolve D of liability
  • common law
A

grant v australian knitting mills

63
Q

risk in respect of breast implants only 0.1% but still liable under common law

A

hollis v dow corning corp

64
Q
  • 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
A

Common law summary- DvS

65
Q
  • strict liability
  • who can sue- anyone suffering damage or harm wholly or partly caused by a defective product
  • who can be sued- producer/supplier
A

statutory liability CPA 87 – who can sue and be sued?

66
Q
  • 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
A

defences- statutory liability

67
Q
  • what interest is protected
  • what type of harm can you sue for
  • (un) reasonable user
  • 3 potential defendants
  • defences
  • remedies
A

private nuisance- problem question

68
Q
  • private nuisance
  • about neighbour disputes/competing interests of landowners
A

fearn v Tate gallery

69
Q
  • 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
A

what interest is protected, malone v laskey, priv nuisance

70
Q
  • have to maintain the balance between the competing claims of neighbours
  • physical damage
  • interference with enjoyment of land
  • encroachments
A

what type of harm can you sue for priv nuisance

71
Q
  • malice
  • duration and frequency
  • abnormal sensitivity
A

(un)reasonable user priv nuisance

72
Q
  • malice
  • Emmett shot near the farm and caused the foxes to get nervous
A

Hollywood silver fox farm v Emmett

73
Q
  • one off incident can still constitute a nuisance
A

spicer v smee

74
Q
  • d not liable if there is abnormal sensitivity of the claimant
A

robinson v kilvert

75
Q
  • 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
A

3 potential defendants priv nuisance

76
Q
  • prescription- 20+ years
  • act of a stranger
  • volenti and cont neg
A

defences priv nuisance

77
Q
  • public benefit- only relevant at remedies
  • coming to the nuisance
A

defences that are ineffective -priv nuisance

78
Q
  • 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
A

miller v Jackson

79
Q
  • damages
  • injunction- discretionary
A

remedies priv nuisance

80
Q
  • same as the test in negligence- wagon mound 1- type of damage needs to be foreseeable but not the extent
A

remoteness of losses- priv nuisance

81
Q
  • 4 conditions
  • priv nuisance
  • dangerous thing
  • accumulation
  • escape
  • non natural user
A

the rule in rylands v fletcher

82
Q
  • dangerous thing
  • anything likely to do mischief if it escapes
A

transco v stockport MBC

83
Q
  • rule doesnt apply to things which grow or accumulate naturally but will apply to things which d deliberately accumulates
A

accumulation

84
Q
  • 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
A

read v Lyons

85
Q
  • cont neg
  • consent
  • act of stranger
A

defences under rylands v fletcher

86
Q
  • prop damage
  • personal injury
  • Econ loss
A

protected interests rylands v fletcher

87
Q
  • 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
A

public nuisance

88
Q
  • 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
A

2 requirements for a public nuisance action

89
Q
  • economic loss
  • inconvenience
  • property damage or personal injury
A

particular or special damage- public nuisance

90
Q
  • 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
A

pub nuisance- what public rights are protected

UNI (23 decks)

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