TortLaw - Special liabilities Flashcards
Special liabilities
OCCUPIERS LIABILTY (OL)
OLA 1957 - lawful visitors
- deals with risks posed and harm caused by dangerous places and building
- occupier of premises COULD be liable if not taken reasonable steps, to ensure visitors and premises reasonably safe
- governed 2 acts
OLA 1967 - lawful visitors - people invited onto premises expressly or impliedly, and
OLA 1984 - unlawful visitors/trespassers
OLA 1957 - LAWFUL VISITORS
DUTY OF CARE
- duty of care to all lawful visitors on premises in respect of dangers posed
- state of premises MUST cause harm NOT activity on it
- for duty to arise:
* def needs to be an occupier
* claimant needs to be a visitor
* of premises
DEF IS OCCUPIER
- controls premises, does not have to be actual owner BUT does need to be someone who has day to day responsibility for upkeep and running
- could be managers hotel
- landlord of tower block, may be occupier of staircase but not individual flats
- may be more than one occupier at one time, if contractors
- contractors are occupiers of area working in, as have control over that area of work
- owner of premises also liable at same time
- Occupier can discharge their duty so only independent contractor liable if:
* entrusted work to contractor - left task completely to them
* ensure contractor competent - obtaining references
* checked job being done if basic, if technical occupier doesn’t need to check it
- If carries out these steps and visitor injured due to contractors negligent work on premises= contractor liable BUT NOT occupier
C IS A VISITOR
- express or implied permission to be on occupiers land
- if goes beyond express or implied position = trespassers
- if injury whilst trespassers MUST claim under OLA 84
Express permission
-inviting guests indoors
- hiring contractor to work on premises; or
- customers in shop/on the premises
Implied permission
- postman - delivering to door
- policeman - conducting search
Exceeding permission = trespassing
- entering out of bounds areas, ignoring signs to keep out
- going to cinema without a ticket
OF PREMISES
- very wide - parts of building/flats, buildings, structures, aircraft, trains and any fixed or moveable structure eg car
STANDARD OF CARE
THE STANDARD
- Occupier must take care reasonable in circumstances to ensure visitors reasonably safe for purpose for which invited
- standard - reasonable occupier - occupier need only take reasonable care to provide reasonable safety for visitors. Does not need to be 100% safe
- Visitor NOT premises must be reasonably safe
- covers most scenarios, but must ensure that visitor with particular vulnerability occupier takes reasonable steps to accommodate the vulnerability, so visitor safe on premises eg if blind
- only applies for purpose for which visitor invited. State of premises NOT activities
BREACH
- whether breach of duties follows same general negligence rules
* likelihood and gravity of potential harm from state of premises, more serious harm, more reasonable it is for def to take action
* costs involved in making premises safer- cheap should be rectified
- visitor also expected to take reasonable care for own safety.
- Therefore occupier only needs to be reasonable, can expect visitors not to be stupid or reckless
- different standards of car for children and skilled visitors
CHILDREN
- higher standard of care
- extra precautions should be taken eg fences if there is water or something with some type of allurement
- only level of safety a reasonable parent would
- therefore if parent with child and they don’t think dangerous, likely occupier will likely not be laible
SKILLED VISITORS - CONTRACTORS OR PEOPLE COMING TO WORK ON PREMISES
- lower standard of care
- occupiers can expect such visitors to take own precautions
WARNINGS
- occupier can discharge duty by taking reasonable steps to give warning of a danger on the premises
- warning MUST be adequate:
* Specific - must mention specific damage
- warning against and possibly state how to avoid that danger
* may need to be clearer according to type of visitor who could be harmed ie child and even a fence or rope
NOTE - don’t confuse warning notices - danger which aim to satisfy duty of care with exclusion notices - we accept no liability, these are a defence and AIM to exclude any liability
DEFENCES
Consent-
- warning notices, if adequate - clear and specific. Can provide defence of consent, C took risk even though they knew of it
Exclusion of liability -
- can use notice to exclude liability, BUT
- occupier must take reasonable steps to bring to attention of visitor - notice positioned in place where can be clearly seen
* exclusion must actually cover what occupier wants to exclude eg any injury caused by state of premises
* if business or sole trader exclusion notice is subject to UCTA and CRA
* this means BUSINESSES & TRADERS CANNOT exclude liability for death or PI. Can only exclude for damage to property & any exclusion must be reasonable
* private occupiers ( individuals) not subject to UCTA or CRA
Contributory Negligence
- did claimants own carelessness contribute to loss
OLA 1984 - Trespasser
OLA 1984 - trespasser
THE DUTY
- occupier owes duty to trespasser to take reasonable care that trespasser doesn’t suffer injury as result of dangers due to state of premises
- Occupiers and premises same definition as 1957 act
- trespasser= anyone who doesn’t have express or implied permission to be on premises
- includes someone who has permission to be on the premises initially but then goes beyond their permission , going to area out o bounds
- Loss by state of premises NOT activity
- Occupier ONLY owes duty in respect of PI NOT damage to property - unlike 1957 act which covers BOTH
- Duty applies if 3 conditions satisfied
i) Occupier aware of danger or has reasonable grounds to believe it exists
- subjective - did occupier know? and objective - should occupier have known?
ii) - Occupier knows or has reasonable grounds to believe someone is or may be in vicinity of danger - even if trespasser
- occupier knows or should be some background facts to indicate to occupier that likely a trespasser would enter premises, and be in vicinity if danger at TIME claimant injured
-THIS IS IMPORTANT - Occupier can’t be expected to know that C would enter premises at 1am if previously trespassed in the afternoon
iii) Risk is one against which in all circumstances occupier may be reasonably expected to offer some protection
- based on magnitude of risk. Depends how dangerous premises are and how costly to reduce risks.
- greater the danger and lower the cost the more occupier has a duty to reduce it
- NO duty owed to trespasser who willingly takes a risk.
- which means if climb fence into danger, and deliberately did something stupid which caused injury
- def won’t be liable here as not reasonable to expect them to afford protection against reckless/stupidity
- Public policy - does reducing risk remove opportunity to play/do sports
STANDARD OF CARE
- that of reasonable occupier
- does not change for children or skilled professional- same throughout
- Standard not as high at OLA1957 as claimant trespasser
- standard factors assessed magnitude of risk and cost.
WARNINGS
– if adequate warnings can discharge duty of care, no liability
- must be adequate - same criteria as OLA 1957
DEFENCES
- consent - aware of risk but still takes it
- exclusion of liability - can exclude if trespasser comes onto ground to play around without permission
- business occupier CAN exclude for any injury resulting from state of premises. Not subject UCTA but IS subject to CRA 2015
- Contributory negligence - contribute to injury?
Summary of comparison between 1957 & 1984 act
TYPE OF DAMAGE TO C
1957 - property damage and PI
1984 - PI only
PREMISES
1957 - Wide - any structure including vehicles
1984 - Same as above
OCCUPIER
1957 - Person with control - doesn’t have to be owner
1984 - Same
VISITOR
1957 - All lawful visitors
1984 - Trespassers - not invited
DUTY
1957 - All visitors, simply because visitors
1984 - DUTY only arises if
i) aware of damager/reasonable grounds to believe it exists
ii) knows/reasonable grounds to believe trespasser in vicinity of danger at time of injury, and
iii) reasonable in all circs for the occupier to offer some protection against risk
STANDARD
1957 - reasonable care - visitor reasonably safe from dangers on the premises
- visitors - must be safe. Standard differs according to kind of visitor - children, professionals
1984 - Reasonable occupier - reasonable care to make sure trespasser doesn’t injure themselves due to state of premises
- standard not as high as OLA 1957
BREACH
1957 - ordinary principles of breach
- obligation to ensure visitors reasonably safe , not 100% safe
- visitors must take reasonable care of own safety
- duty discharged if adequate warning
- No liability for work of independent contactors as long as occupier was reasonable in hiring and checking them
1984 - ordinary principles of breach
- adequate warning of danger may discharge
LIMITATIONS AND DEFENCES
1957 - Exclusionary notice - UCTA and CRA - only for property damage
- Consent
- contrib negligence
1984 - Same as 1957
- EXCEPT business occupiers not subject to UCTA - if trespasser on land to play
PRODUCT LIABILITY
- for defective products better to sue in contract, as don’t need to prove duty of car/standard/causation, and CRA provides statutory rights, protections and remedies for consumer contract.
- BUT if want to sue manufacturer for defective product - no contract with them, so must sue manufacturer under tort of negligence
- tricky so can also sue under Consumer protection act 1987
- makes it easier because strict liability - claimant doesn’t need to prove fault (breach of duty), ONLY that product defective
CLAIMS FOR NEGLIGENCE FOR DEFECTIVE PRODUCTS
1) DUTY OF CARE
- ITEM THAT CAUSED DAMAGE TO PRODUCT
-CLAIMANT IS A CONSUMER
2) CHECK IF THERE HAS BEEN PI OR PROPERTY DAMAG
–IF ONLY THE PRODUCT IS BROKEN - NO CLAIM
3) STANDARD OF CARE
4) CAUSATION AND REMOTENESS
-FACTUAL AND LEGAL CAUSATION
- REMOTENESS
5) DEFENCES
- DEFENCES
1) DUTY OF CARE
Defendant must be manufacturer or supplier
- manufacturer - wide definition - original makers BUT also any person who has worked in some way on the product, inc repairers and installers
- suppliers CAN also be liable if don’t check product prior to selling and
* obvious should have been safety checked before selling
* manufacturer told them to check it
*actually know of defect
- to supply to customer in same state as left product line, without latent defectives consumer has not been made aware of
- this duty continues after left product line
- ITEM THAT CAUSED DAMAGE TO PRODUCT
- broad - any item bought by C capable of causing damage
- includes anything sold with product - packaging, labelling
- CLAIMANT IS A CONSUMER
- ultimate user of product
- target market customer and anyone who def ought to have known would be potentially injured by product, eg pedestrians- faulty car - known as reasonably foreseeable victim
2) CHECK IF THERE HAS BEEN PI OR PROPERTY DAMAGE
-IF ONLY THE PRODUCT IS BROKEN, NO CLAIM
- duty of care for loss covers PI and or property damage CAUSED by defective product
- BUT if no property damage or PI and ONLY product broken NO liability as this is PEL
3) STANDARD OF CARE
-STANDARD
- standard reasonable care- reasonable manufacturer, repairer, installer and supplier
-BREACH
- C only needs to prove product faulty
-CT then infers fault of Manufacturer/repairer/supplier ie shown no reasonable care
- Def can rebut by showing C’s interference that caused fault
-if defect CT will infer carelessness UNLESS evidence to contrary, such as interference, or inspection of product before it reaches consumer that causes the defect
4) CAUSATION AND REMOTENESS
-FACTUAL AND LEGAL CAUSATION
- standard test - “but for” defect no harm would have occurred (balance of probs)
-BUT - if reaches end customer in state manufacturer didn’t intend, or manufacturer intended product would be worked on in supply chain, before it reached consumer, or product installed incorrectly= manufacturer will not be liable.
- Chain of causation can be broken for manufacturer IF supplier inspected goods before selling to consumer and caused defect in doing so
- also broken if manufacturer had genuine or specific reason to believe goods would be inspected before sold to consumer
- What will be “reasonable expectation” depends on facts
- Remoteness - kind of harm must be reasonably foreseeable result of defect
- likely established if “end user” harmed as result of defect in product, and is using product in sensible, standard way
- BUT even then Contributory negligence (CN) likely applicable rather than break in causation
- Manufacturer not liable if consumer/supplier knew about defect but used/sold product anyway
- more common this is used as a defence and CN used
- REMOTENESS
- loss caused must be reasonably foreseeable
5) DEFENCES
- DEFENCES
-Consent - C knows product faulty, but uses anyway accepting risk of injury- difficult to prove CN more common
-CN - C own carelessness contribute to injury eg continuing to use even though its faulty
-CN used where consent fails
- Manufacturer CAN’T exclude or limit liability for damage -PI/death/property damage) resulting from defective product in a contract term, by notice or any other way.
CONSUMER PROTECTION ACT 1987
What is it
1) Who can sue
2) who can be sued
3) What damage can be claimed for?
4) What is a product
5) What is a defect
6) Causation
7) Defences
8) Limitation period
- used for products with design defect - drugs, medicine
- can’t sue under negligence as challenging to prove breach of duty of care and causation - that defect in design was the cause of loss
- nothing goes wrong in manufacture of drug, but actual design defective and potentially causes harm
- CPA 97 uses strict liability
- even if def did nothing wrong in manufacture or design of product ie no breach, if someone harmed by defect in product entitled to comp.
- no proof of fault necessary, only that product is defective
- no requirement for claimant to be reasonably foreseeable victim UNLIKE negligence
ESTABLISHING CLAIM
1) Who can sue
- anyone who suffers damage as result of defective product
2) who can be sued
Manufacturer - usually def. If part of product faulty manufacturer of whole product and part, if different = liable
Own brander
- put brand on product and holds themselves as producer eg supermarkets own cereals
Importer - outside EU into EU
Supplier - only if can’t ID manufacturer, otherwise not liable
- If more than one of above liable for same damage - joint and severally liable between them
3) What damage can be claimed for?
- Death & PI
- Property damage - MUST exceed £275
- If ONLY product broken or damaged CAN’T claim as this is PEL
4) What is a product
- broad
- any goods, electricity, component parts - packaging, raw materials, crops, medicine etc.
5) What is a defect
- exists when safety of product not such that person generally entitled to expect
- not of that standard = defective
- Test - is product worse/less safe than other products it competes with in the market that could have been bought or used
- warnings, instructions, marketing, safety mark, what reasonably expected to be done with the product, time of supply and labelling on package can be considered.
- adequate warnings and instructions = unlikely to be liable
- NOTE - dangerous product DOES NOT mean defence eg consumers usually expect razor can be dangerous if used incorrectly
6) Causation
- principles of factual causation but for on balance of probs
- Legal - no break in chain and loss a reasonably foreseeable result of defect
7) Defences
- defect was because def complied with legal requirements - only if inevitable result of complying with requirements
- def did not supply to another eg product bought and gives to another and they get injured - or steals it and gets injured
- defect did not exist when product supplied, caused by wear and tear or misuse
- manufacturer of component parts not liable if fault is because of finished whole product, or instructions of finished product
- developmental risks defence - applies to medicine and drugs, if
a) at time of making, producers no way of knowing there was a defect, because science had not advance that far, no one had yet discovered defect, and
b) defect/risk could not have been foreseen - very unexpected
- any defect before product released must be accessible for manufacturer to be liable. eg random study discovered defect, won’t count - must be accessible/peer- review knowledge
- covers drug released but then discovery made afterwards that reveals drug defective
- CN damage caused by claimants own carelessness
NOTE - can’t exclude ANY liability under CPA
8) Limitation period
- 3 years from harm suffered, or discovery of harm, whichever later
-BUT C only has 10 years to make claim from time product put into circulation by manufacturer
- ie if in circulation 9 years and C discovers harm after 2 years (11 years)- claim CAN’T be made
