Tort (Underlying Law)

Question 1

What are the 6 elements when considering a claim in negligence?

Answer 1

• Loss or Damage
• Duty of Care?
• Breach of Duty
• Causation
• Remoteness
• Defences

Question 2

How to ascertain a duty of care?

Answer 2

1. Consider whether there are any existing authorities establishing a duty in the factual situation (Precedent)
2. If no precedent, a duty should be imposed by drawing analogies with existing cases
3. When considering novel cases, the law develops incrementally considering (a) proximity between C and D; and (b) whether it would be fair, just and reasonable.

Question 3

Do road users owe a duty of care to other road users?

Answer 3

Yes, a duty to not cause physical injury by careless driving.

Question 4

What is the general rule relating to omissions?

Answer 4

No duty is imposed on a mere failure to act (omission) unless an exception applies.

For example, a stranger sees a child drowning, there is no legal obligation on that stranger to try to rescue them.

Question 5

What are the five exceptions to the rule against liability for omissions?

Answer 5

• Statutory Duty
• Contractual Duty
• Sufficient Control over C
• D assumes responsibility
• D creates the risk

Question 6

When do the ambulance service owe a duty of care in relation to omissions?

Answer 6

They owe a duty of care to respond to a 999 call within a reasonable time.

However, a duty may not be breached if there are more pressing emergencies to which they attend before C.

An ambulance service when responding to a call is not acting in pursuance of a public duty but a duty to the caller. However, note the assumption of responsibility** arose from the assurance and not merely the picking up of the call.**

Question 7

When do the police force owe a duty of care in relation to omissions?

Answer 7

The police owe no duty of care to respond to emergency calls.

However, if a promise is made by a call handler that the police will respond immediately, that could result in an assumption of responsibility

Question 8

When do the fire brigade owe a duty of care in relation to omissions?

Answer 8

The fire brigade owe no duty of care to attend a fire

However, if they do attend a fire, they owe a duty not to make the situation worse through a positive act.

Question 9

Can the existence of a statutory power give rise to a duty on the part of a public authority to exercise the power?

In other words, does an omission to exercise a public power (e.g. re-tarmac the road) give rise to liability if C is injured?

Answer 9

No. The liability of public authorities for omissions is the same as individual liability for omissions.

The mere existence of a statutory power cannot found a positive duty to act.

There are only two options for bringing a case against an authority for failing to confer a benefit, either:

(a) the public authority assumed responsibility or that

(b) the public authority made things worse

Question 10

What effect does a ‘special relationship’ have on the omission rule?

Answer 10

Relationships in which a duty to take positive action typically arises:

• contract
• fiduciary relationships
• employer and employee
• school and pupil
• health professional and patient
• parent and child
• landlord and tenant
• occupier and visitor.

Question 11

What is the impact of creating a risk on the omission rule?

Answer 11

If A creates a risk of physical harm to B, and A knows or ought to know of the existence of this risk, then A is under a duty of care to protect A from the consequences of that risk

Question 12

When does sufficient control lead to liability for an omission?

Answer 12

If A has control over a person or object, this justified a duty upon A to take care to protect B from foreseeable risks of physical harm connected with the person or object.

For example, a youth prison officer responsible for young boys on a trip to the harbour owes a duty of care to those who own yachts to ‘control’ the boys and prevent then causing damage

Question 13

What is the general rule relating to liability for preventing a third party causing harm? Are there exceptions?

Answer 13

Generally, tort imposes no liability on those who fail to prevent a third party causing harm to another.

However, there will be a duty to prevent where….

(a) D assumed responsibility to protect B and fails to prevent a third party

(b) D does an act that prevents another from protecting C (e.g. makes a drowing child swim towards them into a current rather than towards a lifeguard)

(c) A has a special degree of control over the source of the danger (e.g. Teacher over children)

(d) As status creates an obligation to protect C (e.g. parent/child)

Question 14

What is the most convicting distinction between an omission and an act for understanding the operation of the law?

Answer 14

The reason for the imposition of a duty of care is between:

(a) Causing harm (making things worse); and

(b) Failing to confer a benefit (not making things better)

The general rule against omissions captures situations best described as (b) - the exceptions apply because they are illustrations of D ‘making things worse’ and therefore liability is imposed

Question 15

What is the standard of care for a claim in negligence?

Answer 15

D must behave as a reasonable person would in all the circumstances.

D need not do EVERYTHING to prevent the harm. They must do what a reasonable person would do.

The test is objective (an impersonal reasonable person test) and the standard used is set by the act not the actor.

However, despite the objectivity, there has been a subjetivisation of the reasonable man in certain situations.

Question 16

What standard of care is a learner driver held to?

Answer 16

The standard of an ordinarily competent driver.

We do not subjectivise the standar dof care to accomodate the actor being a learner.

Question 17

What standard of care is a junior doctor held to?

Answer 17

According to the act undertaken, not the level of experience.

A uniform standard of care is applied for medical professionals - not the level at which they are acting

Question 18

What is the professional standard of care?

Answer 18

Despite the objective test, there is subjectivity when it comes to professionals.

The professional (e.g. doctor) is judged on what the reasonable professional in that field would have done, not what the reasonable person on the street would have done.

For example, a solicitor is held to the standard of a reasonably competent solicitor.

Question 19

Are children held to the reasonable standard of care as an adult?

Answer 19

No.

The standard is that of the reasonable child of the defendant’s age carrying out the act in question.

For example, it was held that the act of ‘play fighting’ with rubber bands that cuased injury (15 year old girl) was reasonable for a 15 year old since the act was common place.

Question 20

Is the reasonable person when it comes to the standard of care in negligence adjusted for people suffering an illness or disability?

Answer 20

the standard may be adjusted to account for sudden illness and disability but Only if D was reasonably unaware of it.

Two examples…

• D suffers a stroke whilst driving. He was aware his consciousness had been impaired. The standard was the reasonably competent driver, not of one who suffered a stroke. He was guilty of negligence.
• A lorry driver was unaware he suffered a hypoglycaemic attack and crashed - since he was unaware, he was judged according to a reasonably competent driver who is unaware of the impairment. He was not guilty of negligence.

Question 21

What relevance does liklihood of harm have on the question of whether there is a breach of duty?

Answer 21

The more likely someone may be harmed, the more likely there will have been a breach

For example, the chance of being hit by a cricket ball in Bolton was so slight (6 times in 30 years) that there was no breach - the reasonable person need not guard and take precuations against every slight risk.

Question 22

Is the likliehood of harm is generally low, but high for a certain category of person, is this indicative of breach?

Answer 22

Probably.

In Haley a C (a blind person) fell down a pavement hole. Despite many precautions for fully sighed people, the risk of causing injury to blind people was not so slight that it was irrelevant.

D must tailor their ‘precautions’ in light of characteristics of people who they know might be affected.

Question 23

Does the magnitude of harm impact breach? If so, how?

Answer 23

If an injury may occur that would be serious, greater care is needed than if risk was of more minor injury.

For example, if D knows C only has one eye, and fails to provide goggles in a factory, despite the risk of injury being small the consequences of an object hitting the remaining eye result in injury is so great (blindness) that greater care should have been taken.

Question 24

To what extent must D take precuations against forseeable risk?

Answer 24

Only practical and reasonable precautions.

For example, if a factory floods, and D puts down tonnes of sawdust, the only true way to avoid all risk of injury would be to close the factory but for such a slight risk (e.g. of slipping) that would be disproportionate and unreasonable

Question 25

What is the approach to **socially desirable** activities that give rise to what seems to be a breach of duty? For example, D tries to disarm a bomb but does so negligently and it explodes.

Answer 25

* If D takes a risk with the aim of protecting life, limb or property, this may be justified if the benefits outweigh the possible damage. * The **Social Action, Responsibility and Heroism Act 2015** requires courts to take into account benefit for society, the approach towards protecting the saftey and interests of others and whether the alleged breach occrued when acting 'heroically'

Question 26

What is the state of the art defence?

Answer 26

When assessing breach, courts must assess actions against the knowledge in the profession accepted **at the time of the alleged breach.** For example, if an act relating to medical knowledge took place in 1940 and the 'development' in knowledge came in 1970, D must be judged according to what was 'reasonable' to a reasonable medical professional in 1940

Question 27

What is the general principle when it comes to determining whether there has been a breach of duty in sports?

Answer 27

Nothing short of reckless disregard for Cs safety would constitute breach.

Question 28

On whom does the burden rest to prove breach of duty of care?

Answer 28

The burden is on C to prove breach on the balance of probabilities.

Question 29

What impact does s.11 Civil Evidence Act 1968 have on Cs trying to prove a breach of duty?

Answer 29

If the incident caused C injury to result in a criminal prosecution against D, C can use the conviction as **evidence** of careless conduct. For example, a criminal conviction of dangerous driving (relating to the same incident) could be adduced as evidence of breach of duty.

Question 30

What is the standard of care for medical professionals **diagnosing and treating?**

Answer 30

*Bolam* Applies: Did D act in accordance with a practice accepted as **proper by a responsible body of professionals** skilled in that art D will not have breached their duty of care if they acted in accordance with ‘a practice accepted as proper by a responsible body of medical men’ skilled in the area.’ This is true **even if another body of medical opinion would adopt a different course of action**. This does NOT apply for medical advice, information relating to risks or suggesting alternative treatments

Question 31

What is the standard of care for medical professionals providing **advice, information relating to risks & alternative treatments?**

Answer 31

*Montgomery* Applies: The doctor is 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. This means.... * The patient is entitled to be told of risks where necessary for them to make an informed decision * Information provided must be comprehensible, including the benefits and risks However, there are *three* exceptions: * **Patients can refuse** to be informed about the risks * **Therapeutic exception**: A doctor will not be liable for failing to inform a patient if doing so would be seriously detrimental to the patient’s health. * **Circumstances of necessity**, as for example where the patient requires treatment urgently but is unconscious However, note that when it comes to deciding whether an 'aternative treatment' is reasonable (and should be brought to the attention of C) *Bolam* can apply - if a doctor has taken a view that it is not a reasonable alternative, it need not be brought ot the attention of C.

Question 33

What is the factual test of causation in tort?

Answer 33

On the balance of probabilities, but for Ds breach of duty, would C have suffered their loss at that time in that way?

Question 34

If the chance of breach of duty causing loss is less than 51% (e.g. 49 or 50%) can there be factual causation?

Answer 34

No - if there is less than a 51% chance Ds breach caused the loss, the accident (probability wise) might have happened anyway. The claim will fail.

Question 35

What if loss could be caused by any one of five equally probable factors, is there factual causation? | Wilsher v Essex

Answer 35

No. If the injury/loss could be caused by any five equally probable factors, C can only prove 20% probability. 51%+ is needed

Question 36

What is the test of factual causation where, in clinical negligence, the breach is failure to advice on risk? | Chester v Afshar

Answer 36

The but for test is satisfied if C can prove that on the balance of probabilities, if they would have been warned of the risk, they would not have had the operation or deferred to a later dare.

Question 37

What is apportionment?

Answer 37

Where there are multiple tortious factors, apportionment is the calculation to apply once factual causation is established to apportion liability between Ds representative of fault. For example, if C crosses the road and is hit by two seperate drivers (D1 and D2) who were racing, each D may be responsible (e.g. 25% each).

Question 38

How are mesothelioma cases dealt with when it comes to apportionment?

Answer 38

s.3 CA 2006 hold that Ds are jointly and severally liable. Any or all negligent employers who exposed C to asbestos will be liable for to C for the whole sum of damages, but can recover contributions from eachother to make distribution of loss fair. For example, if C worked for d1,d2,d3,d4 AND contracts mesothelioma, it need not be shown that only D1 caused the disease. It is sufficient to show that if asbestos could have been caused by the negligence of d1,d2,d3,d4, then they are jointly and severally liable.

Question 39

What if D1 causes loss, and then D2 is negligent but doesn't cause additional damage? For example, D1 collides with Cs car causing damage. D2 then collides with the car but doesn't cause additional damage (e.g. hit the same area that needed repair) | Performance Cars

Answer 39

If D2 doesn't cause **additional** damage, D2 is not liable.

Question 40

What if there are two tortious events, with the second injury causing the same or worsening the damage? For example, D1 injures Cs leg. D2 later shoots C hitting the leg and causing it to be amputated. | Baker v Willoughby

Answer 40

If there are two tortious events... * D1 remains liable for the original injuries even past the point of the second event - simply, the second tortious event does not end D1s liability. * D2 compensates **additional** losses caused (not the original injuries) This doesn't apply if the second event is a 'natural event'

Question 41

What if there are two tortious events, with the second injury causing the same or worsening the damage due to a **natural event**? For example, C injures their back due to D1s negligence. C later develops an illness (unconnected to D1) and is unable to work.

Answer 41

Ds liability ceases at the point of further injury (e.g to the back) due to the natural cause. **If the second event is naturally occurring, D is liable for damage only up to the natural event**

Question 42

What acts can break the legal chain of causation in tort?

Answer 42

* Acts of God - Natural Events * Acts of Third Parties * Acts of the Claimant

Question 43

When will an act of god break the legal chain of causation?

Answer 43

If damage is caused by some exceptional natural event such as being struck by lightening, drowning in a flood or the onset of a natural disease. However, such an event will not break the causal chain if they could have been forseen and D should have taken them into account (e.g. leaving C on a tidal beach who then drowns)

Question 44

When will an act of a third party break the legal chain of causation?

Answer 44

If the third parties act was highly unforseeable as a result of Ds negligence. For example, D causes a road accident. A third party (police officer) then negligently directs the traffic down the tunnel the wrong way. C is hit by the oncoming traffic. The third party act was so unforseeable that it broke the chain of causation.

Question 45

When would the act of a medical professional (third party) giving treatement break the chain of causation>

Answer 45

The courts are reluctant to allow medical treatement to break the causal chain. Only if the treatment is so gross and egregious as to be unforseeable.

Question 46

When will an act of a claimant break the legal chain of causation?

Answer 46

Cs act must be highly unreasonable. For example, if C breaks their leg due to Ds negligence but tries to descend a steep staircase without a handrail and falls, D will not be liable for the injuries caused by the fall since the act was so unreasonable. However, if C acts carefully (e.g. using a stick or relying on someone) then reasonable actions will not break the causal chain.

Question 47

What is the effect of a novus actus interveniens breaking the legal chain of causation?

Answer 47

D will *still* be liable for loss **before** the intervening act. However, D is *not* liable for loss **after** the chain of causation is broken.

Question 48

What is the tortious test of remotness?

Answer 48

C can only recover if the **type** of damages suffered was **reasonably forseeable** at the time D breached their duty.

Question 49

What does 'type of damage' mean in the test of remoteness?

Answer 49

D ought to have forseen the **type** of damage suffered, not just that damage will be suffered. Whilst some cases construe this narrowly (e.g. forseeing pollution not fire is too remote), most cases construe this more broadly (e.g. personal injury, property damage etc...)

Question 50

Must psychiatric injury be reasonably forseeable to recover damages? In other words, is only forseeing physical injury too remote?

Answer 50

No. In Page it was established that the type of harm forseeable need only be personal injury. It matters note that the specific type of harm was not forseeable (e.g. pyschiatric harm) so long as some 'personal injury' defined as either physical or psychiatric is.

Question 51

For remotness, does D need to/ought to forsee the **exact way** the damage occurs?

Answer 51

No. All that matters is the type (e.g. personal injury) Likewise, D need not forsee the extent of the damage. For example, if a minor explosion causing minor injuries is reasonably forseeable, the damage doesn't become too remote just because the magnitude was not.

Question 52

What is the thin skull rule?

Answer 52

In remoteness, the damage can be aggravated by Cs own weakeness since D must take the victim as they find the, For example, if D negligently burns C who then develops the onsent of pre-existing malignant cancer, the fact that D forsaw the original injury (burns) they are responsible for anything that flows from the injury - even the greater damage due to the pre-existing condition.

Question 53

Can volenti be used as a defence by **motorists** facing claims from passengers?

Answer 53

No. This is an exception to volenti. s.149 Road Traffic Act prevents use by motorists facing claims from passengers.

Question 54

What is required for a patient to 'consent' to risk of injury in the medical negligence setting?

Answer 54

Nothing short of agreement to waive a claim for neglgience will suffice Knowledge of the risk of ijury is insufficient.

Question 55

Can a business exclude or limit liability for death or personal injury (and claim that C consented to the risks due to the inclusion of such terms?

Answer 55

Under UCTA and CRA a business cannot limit liability for death or personal injury For boh provisions, a voluntary acceptance of risk cannot be assumed merely because the consumer agreed or knew about terms purporting to exclude or restrict liability.

Question 56

What is contributorty negligence?

Answer 56

If the damages is partly due to Cs own fault, abut it isn't so unreasonable as to break the causal chain, then Cs damages can be reduced by a percentage to reflect their contribution.

Question 57

What must D show to reduce the damages payable under contributory negligence?

Answer 57

D must show that... * C **failed to take reasonable steps** for their own safety (Objective Standard); and * Cs failure contributed to their damage However, remember that an allowance is made for Cs who have been placed in an emergency, rescuers and children.

Question 58

C is in a car and believes it is about to crash due to the driver losing control. She jumps out at the last minute. If C is acting reasonably (to save her life) can she be found to be guilty of contributory negligence?

Answer 58

No, this falls under the 'emergency or difficult decision' exception D will not be contributorily negligent if they are acting to try and save themselves.

Question 59

When will a rescuer be held to be contributorily negligent?

Answer 59

Resucers are usualyl protected if they do what a resucer would usually do (e.g. knowingly descending into a room with fumes to try and save workers) However, such a protection may not be justified if the 'rescuer' created the dangerous situation in the first instance

Question 60

How does the age of C impact contributory negligence?

Answer 60

If C is a child, the court will consider their age to determine the standard of care. For example, a 13 year old must act reasonably, judged according to what a reasonable 13 year old would do.

Question 61

For contributory negligence, must Cs fault contribute to the accident or the damage?

Answer 61

It need not contribute to the accident, only the damage. For example, failure to wear a helmet whilst riding a bike will not contribute to the accident. However, it may contribute to the amount of damage caused. It is the 'damage' that is operative for contributory negligence

Question 62

How does the defence of illegality work?

Answer 62

The defence may be oeperative if C committed an illegal act. If C committed an illegal act (applying Patel v Mirza) D may argue that the defence of illegality provides a complete defence so that there is no liability. The court must consider (a) the **purpose of the prohibition** transgressed - will it be enhanced by denying the claim?; (b) **public policy** factors that denying the claim may impact; and (c) whether denying the claim is **proportionate** to the illegality. Proportionality takes into account the seriousness of the conduct, the centrality to the tort and culpability. Having considered (a)-(c) it is at the discretion of the court whether to allow the complete defence or not.

Question 63

What are the aim of damages in tort law?

Answer 63

To put C in the position they would have been in but for Ds tortious act as far as possible with an award of money. It seeks to restore C to the position before the tort happened.

Question 64

What are the two types of compensatory damages?

Answer 64

1. **Special Damages** > Provable and Quantifiable financial losses at the time of trial (e.g. loss of incurrings before the trial 2. **General Damages** > Future Financial Losses that cannot be specifically proven, or non-quantifiable losses such as compensation for physical injury.

Question 65

What are examples of special damages?

Answer 65

* Loss of earnings from injury up to the date of trial (C can calculat) * Costs of repairing a car (that has already been repaired before trial) * Expenses incurred relating to medical costs up to the date of trial Special damages are those **incurred/quantifiable up until trial!**

Question 66

What are examples of general damages?

Answer 66

* Compensation for pain and suffering * Loss of earnings after the trial * Cost of adapting a house * Medical expenses after the trial These are all **FUTURE financial losses** and **non-quantifiable losses**

Question 67

How do damages for PSLA (Pain, Suffering & Loss of Amenity) work?

Answer 67

Damage for pain and suffering cover simply the pain/suffering as a consequence of the tortious act. Damage for loss of amenity compensate the effect of the injury on lifestyle (e.g. no longer able to walk) These are seperate but are expressed as one overall single lump sum. Case law is used as a source of reference when quantifying compensation. The primary publication is *Kemp and Kemp*.

Question 68

How are continuing future losses quantified? For example, future loss of earnings or recurring medical expenses.

Answer 68

Using the Multiplier/Multiplicand Approach 1. Take the Multiplicand (the **net figure being lost each year**) for example, a £30,000 salary 2. **Multiply** the figure with the amount of years C is expected to lose out on the multiplicand (e.g. C is 30, will retire at 65, so 30,000 x 35 = £1,050,000) 3. **Adjust the figure downwards**, by assuming that the amount will be invested. In other words, we assume a lesser multiplier so that investment wouldn't exceed the sum. Use the Ogden Tables for this figure. For example, imagine the Ogden Tables reduce 35 to 22.78 - this becomes the new multiplier. £30,000 x 22.78 = £683,400 awarded.

Question 69

What damages are available if C dies as a result of the tort under LR(MP)A 1934?

Answer 69

Per LR(MP)A 1934, **the 'estate' may bring a claim** for any losses (pecuniary and non-pecuniary - suffered by the deceased as a result of the tort **up to the date of death** Note... * No damages post-death are recoverable * There is no claim for the death itself

Question 70

What damages are available if C dies as a result of the tort under the Fatal Accidents ACt?

Answer 70

The Fatal Accidents Act allows **dependants of the deceased** (close blood relations, related by marriage or cohabitees of 2 years) to bring a claim for any lossess suffered as a result of the death, if the death was caused as a result of a fatal accident. For example, for loss of financial support if the deceased earned a wage that contributed to their life. In addition to loss of financial support, the FAA also allows claims by a* spouse, civil partner, cohabiting partner or parents of an unmarried minor* to claim **bereavment damages and recover funeral expenses**

Question 71

What duties does an employer have for their employee?

Answer 71

They owe personal and non-delegable duties. Employers are directly directly liable if those entrusted with responsbility fail to exercise reasonable care in respect of employee safety

Question 72

What are the four key duties of an employer?

Answer 72

To provide.... * Safe and competente employees * Safe and proper plant and equiptment * Safe palce of work/premises including safe access * Safe systems of work, with adequate supervision

Question 73

An employee injuries a fellow employee, what routes could C take?

Answer 73

C could... * Bring a claim against the employer for breach of their primary duty * Bring a claim against the employee who caused harm * Bring a claim against the employer for vicarious liability

Question 74

If an employer devises a safe system of working, is that sufficient to discharge their duty of care towards employees?

Answer 74

No. The employer must take reasonable steps to ensure it is complied with. For example, providing protective equiptment may not be sufficient if they fail to encourage and insist on the employees wearing the goggles.

Question 75

Does the duty of an employer to provide safe premises of work extend to third party premises?

Answer 75

Yes, many employees work on premises not owned or occupied by the employer. However the duty extends to such premises. For example, a window cleaning company could be liable if they failed to take reasonable steps to ensure the locations where window cleaners went to work were safe.

Question 76

What does it mean to be vicariously liable?

Answer 76

One party is held liable for the torts of another arising due to the special relationship between parties. It is a form of secondary liability. There is no need to prove fault on the part of the vicariously liable defendant. It is strict liability.

Question 77

What relationhsip is requried for a party to be vicariously liable?

Answer 77

Party A committed the tort. Party B will only be vicariously liable if the relationship between A and B is either.... (a) One of **employment**; or (b) One **akin to employment **

Question 78

In addition to an employment aspect, what else must be satisfied for vicarious liability?

Answer 78

The tort must have been carried out in the **course of employment.** Ultimately, it will be in the 'course of employment' if there is a **sufficiently close connection** between the wrongful act and employment. This requires consideration of (a) the dunction and field of activities the employer entrusts the employee; and (b) the connection between the act and such function/field.

Question 79

What are some examples that indicate a close connection between the nature of employment and the tort for vicarious liability?

Answer 79

* Tort committed on the employers **premises** during **working hours** * The tort was committed **whilst performing employment duties** * The tort was expressly or impliedly **authorised** by the employer * The tort was **incidental** to the carrying out of proper duties; or * It was an **unauthorised way of doing an authorised act** A good question to ask is whether the employee took their “metaphorical uniform”

Question 80

Employee is smoking whilst filling his companies lorry up with petrol (during working hours) - it causes an explosion. Could the employer be vicariously liable?

Answer 80

Yes The tort is committed when the employee was doing an authorised act (filling the lorry up) in an unauthorised manner (smoking)

Question 81

A milkman is driving a milk float. The milkman was prohibited from allowing children to ride the float by the employer The milkman allowed the child to help with the milkround - the child was injured. Is there vicarious liability?

Answer 81

Yes, because the child was assisting with the milkround, the employee was conducting an authorised act (the milkround) in an unauthorised manner (allowing a child to assist) - therefore the employer is liable. If the milkman was using the float for non-authorised purposes (e.g. to drive the child to the shop) arguably that would be an unauthorised act and an unauthorised manner and therefore the employer would not be vicariosuly liable.

Question 82

If an employee goes off on a frolic of their own, will an employer be vicariously liable?

Answer 82

No. If the act and manner are unauthorised (e.g. joy riding using a companies lorry) there will be no vicarious liability. Much turns on the extend of the employees authorised duties, the time of the tort (was it during working hours?) and the extent of the deviation from what was authorised.

Question 83

Can an employer who is sued for being vicariously liable seek something from their employee who committed the tort?

Answer 83

Under s.1(1) Civil Liability (Contribution) Act 1978, an employer is able to seek an indemnity from their employee should they be forced to pay damages due to the employees tort. A court will only allow a claim if it is 'just and equitable' to do so. This right of contribution is rarely used by insurers under a gentleman's agreement not to sek employee contribution unless there was wilful misconduct or collusion.

Question 84

What factors indicate an employment relationship for vicarious liability?

Answer 84

* **Remuneration** in exchange for services and **mutuality of obligations** (e.g. employer must provide work for the employee, and the employee must do that work) * **Control** (e.g. providing the tools, deciding who works where and when) * **Other contractual factors** such as Tax/PAYE treatment, integration with the organisation, benefits such as annual leave, equiptment being used (e.g. company laptop)

Question 85

When will a relationship be one that is 'akin to employment' for VL?

Answer 85

Where a tortfeasor is not employed, but likewise not carrying on an independent business, it may be 'askin to employement' if... * Employer is more likely to have the **means to compensate** than the tortfeasor * The tort was committed as a result of an **activity being undertaken on the employers behalf** * The activity is **part of the business activity** of the employer * The employer **created the risk** of the tort being committed by allowing the tortfeasor to carry out the actvity; and * The tortfeasor, is to some extent, under some control of the employer. This does not apply to independent contractors. It often covers volunteers

Question 86

Will an independent contractor be in a relationship 'akin to employment' for VL?

Answer 86

No. If the employer has employed an independent contractor to do work for him, the rule is that the employer is not responsible for any tort committed by that contractor in the course of the execution of the work (Barclays Bank) Factors that suggests an independent contractor approach: * The tortfeasor had **choice** over whether to do the work; * The tortfeasor was **paid for the work he chose to do**, rather than being paid a salary for being part of an organisation; * The tortfeasor had **liability insurance**; * The tortfeasor had **multiple clients**;

Question 87

What if the employee carries out an act as a vendetta against the employer? Can this satisfy the 'close connection test'?

Answer 87

The carrying out of the wrongful act in pursuance of a personal vendetta against the employer, designed to harm the employer, will mean that the close connection test is not satisfied, and the employer cannot be vicariously liable In Mohamud the personal vendetta was not against his employer but against the victim on the forecourt - the employer was therefore vicariously liable. By contrast in Morrisons, the personal vendetta was against the employer and therefore there was no liability.

Question 88

What is the position to vicarious liability is an employer (X) lends an employee (A) to another employer (Y)?

Answer 88

There is a rebuttable presumptiont hat X (the main employer) will be vicariously liable for any torts committed by A. This depends on the level of authority - if X stops paying wages and has no power to dismiss A, the position may be different. Note, it is posisble for both X and Y to be vicariously liable (dual liability) if they have an equal measure of control.

Question 89

What constitutes psychiatric harm?

Answer 89

A form of psychiatric illness suffered as a result of the perception of traumatic events. Commonly referred to as 'nervous shock' It must be either (a) A **medically recognised** psychiatric illness; or (b) **Shock-Induced physical conditions**

Question 90

Is it sufficient that C establish that he is suffering, from grief, distress or normal emotion to recover damages for psychiatric harm?

Answer 90

No You cannot have damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. However, an **anxiety neurosis or a reactive depression** may be recognisable psychiatric illnesses, with or without psychosomatic symptoms

Question 91

What makes C a primary victim?

Answer 91

There are two routes: (1) C must be in the the **zone of physical danger**. You are NOT in the zone of danger if you... * Have only been exposed to the risk of injury * Are a a rescuer who attends scene afterwards (2) Ds negligence placed Cs (involuntarily) in a position where they (unkowingly) **contributed to the accident** and thereafter developed psychiatric injury due to guilt For example, C took a 15 year old boy into their home. He abused Cs children resulting in C to feel guilty. C was held to be a primary victim

Question 92

If C is a primary victim, when will D be liable for their psychiatric injury?

Answer 92

For primary victims, D is under a duty of care not to cause **foreseeable physical injury** It is unnecessary to ask whether he was under a separate duty not to cause psychiatric injury

Question 93

When will C be a secondary victim? | Alcock

Answer 93

There are five requirements to be met by secondary victims following *Alcock*: * the **psychiatric injury was reasonably foreseeable;** * there was a **close tie of love and affection**; * there was **proximity** in time and space; * the claimant **directly perceived the accident or its immediate aftermath**; * the claimant’s psychiatric illness was **caused by a sudden shock**.

Question 94

For a secondary victim, who has 'close tie of love and affection'

Answer 94

* **Spouses** (and now civil partners) or **parent-child relationships** > rebuttable presumption that there is a close tie of love and affection * Brothers-in-law, friends, and siblings are usually considered not to have a sufficient close relationship However, the presumption is rebuttable and it depoends on the context of the relationship (e.g. if someone was raised by their grandmother)

Question 95

When will a secondary victim be sufficiently proximate to the accident?

Answer 95

* It must be close both in time and space * The immediate aftermath is sufficient. (e.g. arriving 8 hours later to Hillsborough was insufficient)

Question 96

For a secondary victim, what type of shock must be suffered?

Answer 96

Sudden Shock which violently agitates the mind This means... * Psychiatric illness caused by the accumulation *over a period of time* of more gradual assaults on the nervous system is insufficient * However, a 36-hour period prior to C’s child’s death has been classed as a single ‘horrifying event’ rather than gradual.

Question 97

Can viewing a horrifying event on TV (e.g. Hillsborough) result in actionable psychiatric damage for a secondary victim?

Answer 97

* If the broadcasting code of ethics means that the suffering of identifiable individuals is not depicted on the television broadcasts, it cannot. * However, there is scope to think that if the footage is live and it ia certain that the C’s loved one had been killed there might be a claim * This logic extends to video calls and live feeds.

Question 98

Can a secondary victim sue the immediate primary victim?

Answer 98

No. You cannot claim against the primary victim.

Question 99

Can an employer be liable for occupational stress claims?

Answer 99

Yes - these are dealt with as assumption of responsibility cases. An employer may be liable for such psychiatric harm if... (a) The psychiatric harm was reasonably forseeable; and (b) Forseeability is judged by (i) the nature and extent of the work undertaken; (ii) the signs of stress; and (ii) the size and scope of the business and availability of resources.

Question 100

What constitutes consequential economic loss? Is it recoverable

Answer 100

This is economic loss consequet on physical damage. Consequential economic loss is **recoverable**. For example, C can recover a lost salary due to a broken leg.

Question 101

What constitutes pure economic loss? What is the general rule on recoverability

Answer 101

Economic loss arises where.... * There is **loss not flowing from damage to property or person** * Arising from damage to the property of **another**; or * Defective items that have *always* been defective It is generally **not** recoverable

Question 102

C owns an auction house X gives their cattle a disease and people stop attending the auction house. Can C sue D for lost profits?

Answer 102

No. This is pure economic loss. C only suffers economic loss as a result of the damage of someone elses property (Xs cattle) which C has no proprietary interest in - no recoverability!

Question 103

Can C recover costs of repairing an inherently defective item that has not caused any physical damage?

Answer 103

If C has always had the property subject to the defect, they cannot recover the cost of repair since this would constitute pure economic loss. Of course this does not bar a claim if the defect causes further issues such as exploding and burning C (that would be personal injury) or burning the carpet (physical damage)

Question 104

D damages a cable supplying electric (owned by a third party) to Cs factory. The loss of electricity... (a) Stops the furnace and damages the mental inside (b) Means that C cannot stell the damages metal and therefore loses profits (c) Stops the furnace operating and therefore results in the loss of profits from a further four batches Can D recover damages and why?

Answer 104

(a) This is physical property damage - recoverable (b) This is consequential economic loss - a direct loss of profits as a direct conseqeunce of the physical damage. Recoverable (c) This is pure economic loss since it is a loss of profits caused by damage to a third parties property (the cable) and therefore it is not recoverable. Had C owned the cable, the loss of profits for the four additional batches would have been recoverable as consequential economic loss.

Question 105

What are the exceptions to the rule against recovering pure economic loss?

Answer 105

Pure economic loss may be recoverable if caused by a... * negligent **statement** * negligently drafted **will** * negligently drafted **reference**

Question 106

When will a negligently drafted will give rise to the recoverability of pure economic loss?

Answer 106

If a solicitor drafst a will for their client negligently, and the beneficiary suffers a loss, the beneficiaries can sue the solicitor and recover despite the loss being pure economic loss.

Question 107

When will a negligent reference give rise to the recoverability of pure economic loss?

Answer 107

There is a duty of care owed to the subject of a reference to provide an accurate reference If D gives an inaccurate reference, that stops C gaining employment, C can sue and recover for losses despite them being pure economic loss.

Question 108

When will a negligent statement give rise to the recoverability of pure economic loss?

Answer 108

If D gives negligent advice resulting in pure economic loss, D can recover the loss C must prove *one* of the following: (a) Reasonable **Reliance** (b) An **assumption** of responsibility (c) **Special relationship** of trust and confidence between the parties If C relied on Ds advice reasonably (D has special skill or knowledge) and D knew or ought to have known that C would rely on their advice, then if it is incorrect, they may be liable. Disclaimers included in advice *might* negate a duty of care.

Question 109

What is private nusiance?

Answer 109

Any **continuous activity** or state of affairs causing a **substantial and unreasonable interference** with Cs land or their **use and enjoyment of that land** can ground an action in private nusiance.

Question 110

Who can sue in private nuisance?

Answer 110

C must have a possessionary or proprietary interest. This includes... * Freeholder * Leaseholder * Tenant in Posession * Licensee with exclusive possesion * Beneficial Interest A licensee without exclusive occupation (e.g. a lodger) will not have standing to sue.

Question 111

Can C sue if she owns a property but does not live there? For example, rents it out?

Answer 111

A reversioner may not sue in relation to a nuisance unless it causes injury to his reversion. Put another way, a landlord can sue if they suffer damage to the value of their reversion if, for example, the property gets the reputation of being a noisy place so that it might be more difficult to let

Question 112

Who can be sued in private nuisance?

Answer 112

The following can be sued... * The **wrongdoer** creating the nuisance * The **occupier** if they (a) ***adopt*** the nuisance by using the state of affairs for their own purposes or (b) ‘***continues***’ the nuisance whereby he knows or ought to know of the nuisance and fails to take reasonable means to end. * The **Landlord** if they they authorised or participated directly in the nuisance * The **licensor** (with control and possession) is responsible even if he does not directly cause it

Question 113

Must D, the wrongdoer, be an owner or occupier of land to be sued in private nusiance?

Answer 113

No. There is no requirement that the defendant must be the owner or be an occupier of the land from which the interference emanates. Therefore a trespasser or licensee on another’s land can be sued if they create a nuisance there.

Question 114

If D is the occupier (not the wrongdoer) when will they be said to '**continue**' the nusiance and therefore be able to be sued in private nuisance?

Answer 114

If with knowledge or presumed knowledge of its existence he **fails to take any reasonable means to bring it to an end** though with ample time to do so

Question 115

If D is the occupier (not the wrongdoer) when will they be said to 'adopt' the nusiance and therefore be able to be sued in private nuisance?

Answer 115

If he makes any **use** of the erection, building, bank or artificial contrivance which constitutes the nuisance

Question 116

When can C sue a landlord in private nusiance for the nuisance of a tenant?

Answer 116

If the landlord **authorised** or **participated** directly in the nuisance It is not enough that the landlord had been aware of the nuisance but had taken no steps to prevent it.

Question 117

When can C sue a licensor in private nusiance for the nuisance of a tenant?

Answer 117

A licensor is normally responsible for a nuisance even if he does not directly cause it, because he was in **control** and **possession** of the property

Question 118

Can C sue D for natural hazards and occurrences causing a private nuisance on D’s land?

Answer 118

There is a duty to take such steps as were reasonable in all the circumstances to **prevent or minimise the risk of injury or damage to the neighbour or his property** of which the occupier knew or ought to have know * If the defect remains ‘latent’ there is no duty on the occupier * If the defect becomes patent, a duty will arise It will be breached if the defendant does not take reasonable steps to resolve it - this is a subjective test and considers the actual capacities and circumstances of D

Question 119

What are the two 'types' of recognised damage for private nusiance?

Answer 119

1. Physical Damage to Property 2. Sensible Personal Discomfort (Unreasonable Interference with enjoyment)

Question 120

What constitutes 'physical damage' in private nuisance?

Answer 120

Examples include... * Acid smuts on laundry (Halsey) * Soiled carpet (Hunter) * Paintwork to car (Halsey) Liability under this variant of private nuisance is not barred by the seemingly ‘minor’ nature of property damage (ie. discolouration of paint for example)

Question 121

What are the four stages when considering whether there is 'Sensible Personal Discomfort' in private nuisance?

Answer 121

1. Is **C’s use** of their land interfered with ordinary use? An occupier cannot complain if the use interfered with is unordinary 2. Is **D’s use** of the land non-ordinary usage? Consider the locality. How ordinary is such a smell, noise, construction work etc. 3. Is there **diminished utility** and amenity? 4. Is there a **substantial interference**? It must exceed trivial and minor annoyances.

Question 122

When considering locality for PSD private nusiance and whether Ds use is ordinary, what factors are relevant?

Answer 122

* **Urban Area** > everyone must put up with a certain amount of discomfort and annoyance from the activities of neighbours * **Smell** > particularly pungent smell, goes far beyond any triviality and any background smell. Considernature, intensity and frequency * **Noise** > it must materially interfering with the ordinary comfort physically of human existence, not merely elegant or dainty modes of living * **Demolition and construction work** is not a nuisance provided work is conducted reasonably

Question 123

For PSD, can the defendant rely on themselves for the purpose of locality and ordinary use? ## Footnote For example; if wrexham has a big cheese factory, to what extent can the cheese factory rely on itself to establish that Wrexham is an industrial town, with the sound of lorries being ordinary to the locality?

Answer 123

**Step 1:** Assess locality by reference to the defendant activity. **Step 2:** Eliminate from consideration the nuisance > you can still consider D activity if it can be done without causing a nuisance. For example, even if the cheese factory has been smelly for many many years, and the claimant has never known how smelly it was, when analysing locality, the nuisance should be excluded If this leads to circularity, the court will have to consider an iterative process when considering what (for example) noise levels are acceptable.

Question 124

Can the risk of physical damage, which has not yet materialised, attributable to a nuisance amount to loss of amenity if it reduces the utility of the property for private nuisance? | For example, Japanese Knotweed Encroachment but not yet materialising ## Footnote For example, presence of Japanese knotweed on the boundary even though there has not yet been any physical damage?

Answer 124

Yes - if the mere presence of Japanese knotweed **interfered with the amenity value of that land** and thereby imposes ab immediate burden on the owner of the land

Question 125

Can overlooking constitute nuisance?

Answer 125

Post-Fearne, extreme-overlooking can constitute nuisance. Extreme overlooking does not just interfere with my privacy. It renders the land itself unstable for the kinds of ordinary things one might wish to do on land. Therefore it is a nusiance. *e.g.* just as noises might stop you comfortably sleeping at night, so too will the fact that you sleeping will end up on someone’s Instagram story.

Question 126

What is the prescription defence to private nuisance?

Answer 126

If D has conducted the activity and it has been an **actionable nuisance** for 20 Years + no action can be taken. Note the following... * It is the lenghth of time that a C could have complained, not the length of time it has been going on for. * The above need not be the specific complainant, it is sufficient 'a' complainant could have made a complaint within 20 years to take the defence away. * The 20 years does not have to be continuous. So long as there have been 20 years where someone could have sustained a private nuisance action, that is sufficient For example, if noise has been made for 25 years, but it has only recently become a nuisance due to the change of locality (e.g. it is now a village) then it will only have been actionable, say for 5 years - the defence is unavailable.

Question 127

What is the statutory authority defence for private nuisance?

Answer 127

Where Ds activity is carried out due to statutory authority, they will escape liability if exercised with due care and the nuisance is an inevitable consequence of the activity

Question 128

If C consents to D causing a nuisance, can consent operate as a defence?

Answer 128

Yes. However, C must consent to the specific activity causing the nuisance, not just the general activity that may/may not cause a nuisance.

Question 129

Can D argue that C 'moved to the nuisance' and thereore they have no claim?

Answer 129

No - this will fail. If D has always committed nuisance, it is not a defence to state that 'C moved and came to it, so it's not our problem' The exception to this is the 20 year prescription rule

Question 130

What is the main remedy for private nuisance?

Answer 130

**Injunctions to stop a continuing nuisance**

Question 131

When will damages in lieu of an injunction be awarded for private nuisance?

Answer 131

Damages in lieu of an injunction may be given if.. * Injury is small * Is capable of being estimated in money * Can be adequately compensated by money and * It would be oppressive to the defendant to award an injunction. Such damages are based on the reduction of value of Cs property.

Question 132

What is the remedy for actual physical damage caused by private nuisance?

Answer 132

1. Damages calculated by reference to the cost of repair (cost of cure) or reduction in value of the property; and 2. Damages for foreseeable consequential economic losses (e.g. loss of profits) Compensation for personal injury and death is never recoverable under private nuisance

Question 133

What is abatement?

Answer 133

Self-Help remedy C enters onto the land creating a nuisance and takes reasonable stepts to prevent the nuisance continuing * Anything beloning to D must be kept on the property * Notice must usually be given to C unless it is an emergency For example, C could cut down overhanging branches, but would need to return them to Ds land. Valid Abatement is a defence to trespass

Question 134

What is public nuisance?

Answer 134

Acts or omissions of D that materially affect the **reasonable comfort** and convenience of life of a **class of His Majesty's subjects.**

Question 135

Does C need a proprietary interest to sue in public nusiance?

Answer 135

No proprietary interest need be involved:

Question 136

If D is an occupier, and the premises become dangerous **owing to want of repair** and it causes damage, when is the occupier liable in public nuisance?

Answer 136

The occupier is liable although he did not know of the danger and was not negligent in not knowing if it is casued by 'owing to want of repair' and the problem is patent (not latent)

Question 137

When will an occupier be guilty in public nuisance if the premises become dangerous, not by the occupier's act or neglect of duty, but as the result of the act of a **third party, or of a latent defect,**?

Answer 137

The occupier is not liable (a) without proof of knowledge or means of knowledge and (b) there is failure to abate it.

Question 138

When will a public nuisance affect a class of His Majesty's subjects?

Answer 138

* There is no minimum number of people that must be affected * It must be so widespread in its range or so **indiscriminate** that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it

Question 139

For a public nusiance to affect a class, is it necessary to show that everyone within the class has been affected

Answer 139

No – just a ‘representative cross-section’ of the community.

Question 140

Can public nuisance be indirect?

Answer 140

Yes For example, in *Lowrie*, a defendant made a number of hoax calls to emergency services, thus diverting the services away from genuine cases. The community affected by this was held to constitute a class of people.

Question 141

What damage must be shown to have a claim for *compensation* in public nuisance?

Answer 141

The claimant must show he has suffered special damage **over and above the ordinary inconvenience suffered by the public at large**. However, this does not prevent claims under the Local Government Act 1972 s.222 to bring proceedings for an injunction when it considers it “expedient for the promotion or protection of the interests

Question 142

Are damages for personal injury recoverable for public nuisance?

Answer 142

Yes - damages for personal injuries and pure economic loss are recoverable in claims for public nuisance.

Question 143

What is the rule in Rylands v Fletcher?

Answer 143

If D brings onto his land and collects/keeps anything **likely to do mischief if it escapes** must keep it in at his peril - if it escapes, he is liable for the **damage that is a natural consequence of the escape**

Question 144

Who can sue in Rylands v Fletcher?

Answer 144

C must have a proprietary interest in the affected land

Question 145

Who can be sued in Rylands v Fletcher?

Answer 145

* D is the **owner** or **occupier** of land * D brings, keeps or collects an exceptionally dangerous thing on his land

Question 146

What types of loss are recoverable under Rylands v Fletcher?

Answer 146

**Property damage and conseqeuntial economic loss** Personal Injury & Pure Economic Loss fall outside the rule

Question 147

For Rylands, what makes D’s use a non-natural/non-ordinary use of the land?

Answer 147

It must be extraordinary and unusual (as opposed to natural or ordinary uses of land) Note something can be dangerous but not improper (dangerous chemicals need to be stored somewhere The following have been regarded as natural or ordinary uses of land (therefore no liability) * the main water supply * a fire in a domestic grate * electric wiring * gas pipes in a house or shop * burning stubble in the normal course of agriculture * the ordinary working of mines or minerals The following have been regarded as dangerous and extraordinary: * Bulk storage or transmission of water * Storage of gas or electricity * Bulk storage of chemicals * Bulk storage of combustible materials

Question 148

When considering whether use of land for Rylands is non-natural/non-ordinary use of the land, what question should you ask?

Answer 148

Is the keeping of X on D’s land something that D recognises, or ought to recognise, as being quite out of the ordinary in the place and at the time when he does it

Question 149

For Rylands, what constitutes an escape?

Answer 149

The thing brought onto the land/accumulated must escape, as opposed to causing damage on D’s premises For example, creating an explosion/fire that escapes is sufficient

Question 150

What defences can D raise for rylands?

Answer 150

* Common benefit * Act of the claimant * Statutory Authority * Act of Third Party * Act of God

Question 151

When will consent and common benefit operate as a defence to Tylands?

Answer 151

If C agreed to the material on Ds land, there will be no liability. Consent can be implied if the substance was for the common benefit of C and D. For example, a water tank used by both C and D

Question 152

If C has caused the escape (e.g. digging a canal and goes under Ds land causing a flood) will D be liable for Rylands?

Answer 152

No. If C caused the escape, there will be no liability

Question 153

When will D have a defence due to the act of a third party under rylands?

Answer 153

If the escape was due to an act of a stranger which the defendant could not reasonably have anticipated and guarded against.

Question 154

An extraordinary rainfall breaks down the artificial embankments causing an escape. What defence can D rely on?

Answer 154

An Act of God defence The escape is caused directly by natural causes without human intervention in circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility The ambit of the act of God defence is narrow.

Question 155

What act governs the duty owed by occupiers to visitors?

Answer 155

Occupiers liability Act 1957

Question 156

What act governs the duty owed by occupiers to non-visitors?

Answer 156

Occupiers liability Act 1984

Question 157

What duty does an occupier owe under s.2(1) OLA 1957?

Answer 157

A duty of care to all visitors on their premises to take **such care as is reasonable** in the circumstances to see the visitor will be reasonably safe in **using the premises** for the **purposes permitted**.

Question 158

Who is an occupier?

Answer 158

Someone with a sufficient degree of control over the premises * Owners * Tenant * Landlord * Independent contractors Legal dominion alone is not generally sufficient: some level of **physical control** of the premises is also usually required (although this does not necessarily equate to having a physical presence on the premises)

Question 159

For OLA can there be multiple occupiers?

Answer 159

Yes, multiple persons can exercise control at the same time * Where an owner in possession grants a licence she will retain sufficient control to count as an occupier (Wheat v Lacon) * Where an owner in possession employs an independent contractor she will retain sufficient control to count as an occupier. The contractor may also be an occupier

Question 160

When is a landlord an occupier with 'sufficient control' for OLA?

Answer 160

* If the Landlord **doesn't live** in the property, the tenant is the occupier * If the landlord **retains control of some parts** (e.g. stairways) they are the occupier for those parts * If the landlord **issues a licence**, they remain an occupier

Question 161

What constitutes a premises for OLA?

Answer 161

* Buildings * Any fixed structure * Any movable structure * Vessel * Vehicle * Aircraft * Ladder

Question 162

Who is a visitor for OLA 1957?

Answer 162

* Persons with express permission * Persons with Implied Permission * Persons with Lawful Authority * persons with Contractual Permission

Question 163

Can express permission be limited? In other words, can a visitor become a trespasser?

Answer 163

Yes Permission to enter can be limited. For example, by signs such as 'no unauthorised entry' They may limit permission to area, time and purpose. However, the restrictio has to be clear enough (e.g. a sign forbidding entry into a pond located in the carpark was held not to be enough to turn the visitor into a trespasser) Excess of permission makes a visitor a trespasser, and OLA 1984 applies.

Question 164

When will C have implied permission for OLA?

Answer 164

Any person who enters the occupier’s premises for the **purpose of communicating with him** will be treated as having the occupier’s tacit permission unless he knows or ought to know that he has been forbidden to enter for example by a notice For example, “no canvassers, hawkers or circulars”. The occupier may, withdraw this licence by refusing to speak or deal with the entrant, but if he does so the entrant has a reasonable time in which to leave the premises before he becomes a trespasser

Question 165

When will C have a legal right to enter as a visitor for OLA?

Answer 165

* Police officers with a warant * Gas Board Officials * Firefighters attending a fire

Question 166

What effect does contractual permission have on visitors?

Answer 166

Where persons enter or use, or bring or send goods to, any premises **in exercise of a right conferred by contract** with a person occupying or having control of the premises, the duty he owes them in respect of dangers is the common duty of care > Section 5 OLA 1957 For example paying guests at a hotel or paying visitors to a theatre performance or to see a film at a cinema.

Question 167

What is the standard of care of an occupier to a visitor?

Answer 167

That of a reasonable occupier (objective) to ensure reasonable safety of visitors in using the premises for the permitted purpose. A visitors personal characteristics may affect the standard. For example, if they are aware of a visitors vulnerability, they can reasonably be expected to guard against it. For example, if D knows C is blind and gives them a balcony room in his hotel, he should have warned C and (if desired) possibly locked the balcony doors.

Question 168

Are children visitors owed a higher standard of care under OLA 1957?

Answer 168

**Children are owed a higher standard of care**. An occupier must... * Be preapred for children to be less careful than adults * Take additional measures to protect children from allurments (e.g. poison berries) * There is no duty to go beyond common sense > person who owns a mountain in the vicinity of a town is not obliged to fence it off in case small children come ther However, where reasonable an occupier is entitled to presume that childrenw ill be subject to parental care - the occupier will have discharged his duty towards a child if **the place is reasonably safe for a child accompanied by the sort of guardian the occupier is entitled to expect the child to be accompanied by**

Question 169

Is the standard of care ever lowered under OLA 1957?

Answer 169

Yes, persons entering premises in the exercise of their skilled calling are owed a lower standard Occupier can expect that professionals/tradespeople will appreciate and guard against risks that ordinarily incidental to it

Question 170

Is D in breach udner OLA 1957 for risks willingly accepted?

Answer 170

No s.2(5) notes the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor

Question 171

Is D in breach udner OLA 1957 if the risk is inherent and obvious?

Answer 171

When carrying out the assessment of reasonableness, a visitor’s decision to **run an obvious risk** may, in certain circumstances, prove fatal to the case against the occupier, but it is only one factor to weigh into the balance and it may not eclipse other factors that do point towards liability For example, no liability where a 15 year old schoolboy slipped on an A4-sized patch of rainwater on the floor ## Footnote Note, very obvious risks do not necessarily reqiuire express warning to dischafrge liability

Question 172

For liabiltiy under OLA 1957, what is the relevant thing that must be dangerous?

Answer 172

The premise not the activity If exposure does not arise from the **static state of the premises** but from the way in which someone (e.g. employees or contractors) carry out their work, the occupier’s duty does not extend to risks arising from those activities.

Question 173

Aside from ensuring the premises contain no dangers, what can an occupier do to ensure visitors ensure he has complied with his duty?

Answer 173

An occupier will satisfy the duty if they warn the visitor of the danger and the warning is enough to ensure the visitor is reasonably safe. For example, a sign stating 'no entry - danger keep out' Note that warning notices are not subject to regulation under the Consumer Rights Act 2015 or the Unfair Contract Terms Act 1977. Warning notices do not have to be fair, they simply have to give a choice and allow reasonable safety. However, if the warning sign also tries to exclude liability, then it would have to satisfy CRA/UCTA.

Question 174

If the danger is caused by an independent contractor, under OLA 1957, how does this impact the occupier?

Answer 174

Per section 2(4)(b) LA 1957 there is no duty owed in relation to work by independent contractors if the occupier acted reasonably in entrusting the work to them (checking competency, checking the work and supervising)

Question 175

Under OLA 1957, is exclusion of liability permitted?

Answer 175

Exclusion of liability permitted (s2(1)) is permitted, subject to CRA/UTCA

Question 176

Can D raise contributory negligence against a visitor under OLA 1957?

Answer 176

Yes > D can raise the defence of contributory negligence on the basis that C failed to act as a reasonable man would “for the protection of himself or his property”

Question 177

What damages can a visitor recover under OLA 1957?

Answer 177

Both personal injury and property damage is covered

Question 178

Under OLA 1984, what damage is the occupier liable for?

Answer 178

**Only death or personal injury** No claim for damage to any personal property

Question 179

What must C be to claim under OLA 1984?

Answer 179

They must be a trespasser. Trespass consists of any unjustifiable intrusion upon land in the possession of another. The slightest crossing of the boundary is sufficient.

Question 180

when does an occupier owe a duty to a trespasser?

Answer 180

A duty is owed by an occupier to a trespasser in relation to a risk of their suffering injury by reason of any **danger due to the state of the premises** if: 1. D is **aware of the danger** or has reasonable grounds to believe that it exists 2. D knows or has reasonable grounds to **believe that the other is in the vicinity of the danger** concerned or that he may come into the vicinity of the danger; and 3. The risk is one against which, in all the circumstances of the case, **he may reasonably be expected to offer the other some protection**.

Question 181

An occupier who owns land that is fenced off for example, but knows that there is a hole in that fence with jagged edges that children often go through to play on the other side, would owe those children a duty of care under OLA 1984. Why?

Answer 181

The occupier is both **aware of the danger** and that **children are in the vicinity** of that danger so if they were to injure themselves on the jagged edges then they would be able to sue the occupier. If the occupier is not aware of the hole in the fence and is equally unaware that children make use of it on a regular basis, then there would be no duty of care owed

Question 182

What effect does warnings have under OLA 1984?

Answer 182

Any duty owed may be discharged by taking such steps as are reasonable in all the circumstances of the case to **give warning of the danger concerned or to discourage persons from incurring the risk** However, simply providing a warning sign is not enough; the sign must be clear enough to ensure that the risk is obvious to the trespasser.

Question 183

Can the duty under OLA 1984 be restricted or excluded?

Answer 183

Up for debate Best answer is that it cannot be excluded

Question 184

What defences are available under OLA 1984?

Answer 184

* Voluntary assumption of risk > no duty of care is owed in respect of risks willingly accepted by the visitor * D can raise the defence of contributory negligence

Question 185

What purpose does the CPA 1987 serve?

Answer 185

It provides a statutory basis for claims relating to damage caused be defective products. It is a strict liability regime - parties can be liable without it being necessary to show fault on their part

Question 186

Who can be sued under CPA 1987? What if there are multiple?

Answer 186

* Manufacturers * Producers * Branders * Importers * Suppliers who refuse to identify the person who supplied the product Where two or more persons are liable by virtue of this Part for the same damage, their liability shall be **joint and severaly**

Question 187

Who can bring a claim under CPA 1987?

Answer 187

* If suing for **death or personal injury,** anyone suffering damage relating to death or personal injury (no proprietary interest needed) * If suing for damage to **property**, only persons with an interest

Question 188

A loans B a phone that explodes. It injures B. It damages Bs coat. Who can claim under CPA 1987 for what?

Answer 188

* B can claim damages for personal injury * B can claim damages for physical damage to the property • A can’t claim, they haven’t suffered a loss

Question 189

What constitutes a product under CPA 1987?

Answer 189

* Goods * Electricity * Products comprised in other products as component parts or raw material * Substances (e.g. food and drugs) * Growing crops * Components of buildings For example, a computer chip is a produce (even if inside a computer) and a plastic sheet is a product (even after being moulded into a toy)

Question 190

What constitutes a defect under CPA 1987?

Answer 190

A product is defective if it is not such as persons **generally are entitled to expect** The level of safety is not assessed by reference to actual expectations of an actual or even a notional individual or group of individuals. The test of defectiveness can only be a reference to an entitlement as a matter of law For example, in the case of complex and technological products, for example, ordinary people may not know what to expect, but the courts, **aided by expert evidence**, are in a position to decide what they are entitled to expect.

Question 191

What impact does a standard approved by a public authority have on a question of defective products?

Answer 191

* Liability will usually be imposed if **applicable mandatory standards or regulatory requirements** have been violated. * It may be difficult to establish that a product which complies with such standards or requirements is defective

Question 192

When are products to be judged as 'defective' for CPA 1987?

Answer 192

The safety of a product is to be judged by reference to standards prevailing when it was put into circulation For example, a 2015 car is not defective merely because subsequent models are produced with more advanced safety However the “product” in question for this purpose is the individual item which causes the damage, not the product “line” or design —one cannot go on forever producing cars to 2015 standards when everyone else’s safety standards have improved

Question 193

What effect do warnings and instructions have under CPA 1987?

Answer 193

Where a risk is not obvious to the user, the product may be defective **because it is not accompanied by adequate warnings** or instructions, as is made clear by s.3(2)(a).

Question 194

Does Contirbutory Ngeligence apply to CPA 1987?

Answer 194

Yes, where damage is caused partly by a defect in a product and partly by the fault of the claimant, the defence of contributory negligence applies and the damages payable are reduced accordingly

Question 195

What is the CPA 1987 compliance defence?

Answer 195

The defect is attributable to compliance with any requirement imposed by or under any enactment or with retainrd EU obligations

Question 196

What is the no supply defence in CPA 1987?

Answer 196

That the person proceeded against did not at any time supply the product to another (ie stolen or found); or

Question 197

When does the 'Did not exist at time of supply' CPA 1987 apply?

Answer 197

D can raise this defence if **the defect did not exist in the product at the relevant time** (ie the product was defective, but not when the product was supplied); or

Question 198

What is the 'Scientific Knowledge' defence under cpa 1987?

Answer 198

It is a defence if D can show that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control

Question 199

Can C recover damages for economic loss under CPA 1987?

Answer 199

No. It must be personal injury or damage to OTHER property In other words, **you cannot claim for the loss of the defective produt itself.**

Question 200

Can you claim for damages under £275 under CPA 1987?

Answer 200

No. The amount must exceed £275

Question 201

Can you bring a claim under CPA 1987 if the damaged property is business property?

Answer 201

No. It only applies if the damages property is for private use,

Question 202

Can you exclude liability from the CPA 1987 product liability regime?

Answer 202

No Section 7 of the 1987 Act enacts a simple rule invalidating any limitation or exclusion of liability “by any contract term, by any notice or by any other provision”

Question 203

What is the limitation period for bringing claims under CPA 1987?

Answer 203

The claim must be brought **within 3 years of the later:** (a) Date of injury/damage caused; or (b) When C became aware or should have become aware of the damage There is a long stop provision of 10 years after the product was put into circulation. However, this does not, however, affect the common law of negligence

Question 204

In the common law of negligence, what duty does a manufacturer have?

Answer 204

A manufacturer owes a duty of care to those people who use its products. It owes a duty to (a) the final user; and (b) other users withtin the supply chain. The most likely 'target' for liability is the manufacturer, but liability and the duty extends to suppliers, distributors, repairers if they should have inspected the product and discovered the defenct (whatever would be reasonable)

Question 205

What is the rate of interest on a claim for damages for future loss of earnings?

Answer 205

No interest can be awarded for damages for future loss of earnings

Question 206

Where there exists **more than one possible cause** of an injury or harm, what must the show?

Answer 206

It must simply be shown that the defendant’s actions materially contributed to the harm. Where multiple cumulative causes contribute to the harm and it is impossible to establish "but for" causation, the material contribution test can be applied

Question 207

What factual causation test is used where we know the cause is A cause, but there are multiple causes?

Answer 207

Material Contribution to Harm Test

Question 208

C undergoing a routine surgery when the surgeon negligently left a surgical instrument inside and C developed a severe infection. It is unclear whether the disease developed from the instrument or exposure to an unrelated bacterial source during the hospital stay. What factual causation test applies and why?

Answer 208

The material contribution test, because both the negligence and the unrelated bacterial source potentially contributed to the infection, making it difficult to isolate the exact cause. This is because there are multiple factors collectively contributed to the harm, and the exact contribution of each factor cannot be definitively isolated. The material increase in risk test applies more narrowly in cases such as industrial disease where a breach has increased the risk of harm. **It does not apply to medical negligence**.

Question 209

What causation test is used for mesothelioma? Why?

Answer 209

Factual causation is satisfied because the textile factory's breach of duty **materially increased the risk** of the claimant developing mesothelioma. This test applies to mesothelioma claims as it is scientifically impossible to prove the but for test in relation to mesothelioma unless the claimant has only been exposed to asbestos in one place, which is very rare. In mesothelioma claims, where there are multiple potential sources of asbestos, the material increase in risk test can be applied.

Question 210

Under LR(MP)A 1934 who can aim for losses suffered by the deceased up to the date of death?

Answer 210

The Estate For example, an estate can claim for a worker's pre-death losses. This may include medical expenses, and pain and suffering.

Question 211

Per the Fatal Accidents Act 1976 who can bring a claim for loss of financial support and funeral expenses?

Answer 211

Only Dependents The estate cannot claim for financial support or funeral expenses

Question 212

When dealing with the question of whether a solicitor has breached their duty, how should we describe the standard of care owed?

Answer 212

It is more accurate to refer to the specialist area of law that the solicitor is advising on. S olicitors specialise in particular areas of law and the courts will be concerned with what a reasonable body of solicitors specialising in that area of law would have done, in the same way that the courts differentiate between, for example, GPs and surgeons.

Question 213

# ****** Does the thin skull rule apply to economic vulnerabilities?

Answer 213

Yes. The defendant is liable for the full extent of the claimant's losses, even if those losses are greater due to the claimant's financial position. For example, due to an explosion caused by Ds negligence, C had to secure temporary housing with a loan with a very high interest rate.

Question 214

If C jumps out of the way to avoid a danger, but jumps inot another danger (e.g oncoming traffic) can D claim contributory negligence?

Answer 214

In emergency situations, the actions of the claimant are judged based on what a reasonable person would do in that situation. If, for examle, the pedestrian acted reasonably to avoid immediate danger trying to save themselves, they act reasonably, then contributory negligence will not be available.

Question 215

When injuries are a direct consequence of participating in illegal activities, what is the usual outcome?

Answer 215

Claims for damages are typically barred to avoid inconsistency in the law and harm to the integrity of the legal system

Question 216

How do the courts approach the calculation of damages for pain, suffering, and loss of amenity in this case?

Answer 216

The court will refer to established case law and publications like **Kemp & Kemp** to determine a **single lump sum** that considers both the physical pain and the impact on the pianist's lifestyle.

Question 217

Under the Law Reform (Miscellaneous Provisions) Act 1934, who can claim losses (both pecuniary and non-pecuniary) suffered up to the date of death?

Answer 217

The Estate

Question 218

Under the Fatal Accidents Act 1976, who can claim for losses suffered due to the death, including loss of financial support? Can they recover bereavement damages?

Answer 218

The deceased's family, who are dependents, can claim for losses suffered due to the death, including loss of financial support. Only a **spouse**, **civil partner or cohabiting partner (for 2 years)** can claim for bereavement damages.

Question 219

Who can claim for berevment damages?

Answer 219

Only a **spouse, civil partner or cohabiting partner (for 2 years)** can claim for bereavement damages.

Question 220

Who specifically can claum under the Fatal Accidents Act?

Answer 220

* Spouse * Former spouse * Partner living in the same house immediately for 2 years * Parent or other ascendant of the deceased * Children, grandchildren etc.... * Any person treated as a child in relation to any marriage of the deceased * Brother, sistter, uncle or aunt of the deceased. It can cover financial dependency, physical depndency (e.g. caring or gardening for an aunt) and services provided.

Question 221

When must a claim under the Fatal Accidents Act be brought by?

Answer 221

3 years from the date of death or date of knowledger of the person for whose benefit the action is brought.

Question 222

Under the CPA, who are the usual defendants?

Answer 222

Producer (e.g. grew mangos) Importer (e.g. importing company) Supplier (e.g. supermarket) All parties can be liable....