Unit 3 - Rules of Tort, Theory of Tort, Negligence, Occupiers Liability Flashcards
What is a tort?
A tort is a non-criminal action which causes damage to a person, property or enjoyment of land.
Who is the burden of proof placed on in tort cases, and what is the standard of proof?
The claimant has to prove the tort. The standard is that, on the balance of probabilities, the Defendant is at fault and responsible.
In what types of tort is fault required?
Negligence, occupiers liability, psychiatric damage, or pure economic loss caused by negligent misstatement
In which types of tort is fault not required?
Nuisance, vicarious liability and Rylands v Fletcher cases
Why is pure economic loss generally not actionable?
This would place no reasonable limit on a defendant’s liability and “open the floodgates”.
What is negligence?
A breach in duty of care.
What is the test used for establishing whether a duty of care should be created, and what are the three steps?
Caparo test - Caparo v Dickman (1990) - misvalued shares
- Damage must be reasonably foreseeable - objective test
- There must be a relationship of proximity between the parties - close in time, space, and relationship
- It is fair, just and reasonable to impose a duty of care
Case - showing that police do not owe a duty of care in the detection of crime
Hill v Chief Constable of West Yorkshire (1988) - Yorkshire Ripper
What is the definition of a breach in the duty of care?
“not doing something a reasonable person would do so, or doing something a reasonable person would not do” - Blyth v Birmingham Water Works (1856)
Case - showing that professionals will be judged by the standard of a reasonable professional i/r/t breach of duty of care
Bolam v Frien Hospital Management Committee (1957) - ECT fracture
Case - showing that children will be judged by the standard of a reasonable child i/r/t breach of duty of care
Mullin v Richards (1998) - ruler fight
What four factors are used in determing whether the defendant acted reasonably i/r/t breach of duty of care?
- Cost of precautions
- Importance of activity
- Degree of risk
- Seriousness of injury
How is degree of risk considered in whether a defendant acted reasonably i/r/t breach of duty of care, and what case illustrates this?
The greater the risk, the more precautions need be taken to show reasonableness. Bolton v Stone (1951) - cricket balls
How is cost of precautions considered in whether a defendant acted reasonably i/r/t breach of duty of care, and what case illustrates this?
The cost of precautions are not expected to outweigh the risk. Latimer v AEC (1952) - factory floor slip
How is seriousness of injury considered in whether a defendant acted reasonably i/r/t breach of duty of care, and what case illustrates this?
The more serious the potential injury, the greater the level of care required to be considered reasonable. Paris v Stepney Borough (1951) - eye loss
How is importance of activity considered in whether a defendant acted reasonably i/r/t breach of duty of care, and what case illustrates this?
Some risk may be acceptable if the risk is socially important. Watt v Hertfordshire County Council (1954) - fireman jack.
What are the two requirements for damages caused by a breach of duty of care?
- The damage must be caused by the breach.
2. The damage must not be too remote.
Case - showing that damage must be caused by the breach of duty of care
Barnett v Chelsea Hospital (1969) - undiagnosed poison
Case - showing that damage must be foreseeable - the “foreseeability test”
The Wagon Mound (1961) - oil on water
Case - showing that extent of damage i/r/t breach of duty of care need not be foreseeable
Smith v Leech Brain (1962) pre-cancerous lip
Case - showing that precise chain of damage i/r/t breach of duty of care need not be forseeable
Hughes v Lord Advocate (1962) - sewer explosion
Case - example of pure economic loss generally not being recoverable
Spartan Steel and Alloys Ltd v Martin (1972) - steelworks trench
What are the four steps in defining a special relationship that a duty of care may be owed in regard to negligent misstatements, and what is the name of the case that defined this?
Hedley Byrne and Co Ltd v Heller and Partners Ltd (1963)
- Defendant possesses a special skill relating to the statement
- The Defendant knows that the Claimant is highly likely to rely on statement
- The Claimant does rely on it, and incurs financial loss as a result.
- It was reasonable for the Claimant to rely on the statement.
Case - example of reliance being refused i/r/t special relationship regarding negligent misstatement
JEB Fasteners v Bloom (1983) - company acquisition
What is the difference between a primary and secondary victim i/r/t psychiatric injury?
A primary victim was in the zone of physical danger, while a secondary victim was a witness to the events but was not in physical danger themselves.
Case - showing that psychiatric damage need not be foreseeable
Page v Smith (1996) - car accident chronic fatigue
Which case defined the four stage test for whether a secondary victim can claim a duty of care is owed, and what are the four stages?
Alcock v Chief Constable of South Yorkshire (1992) - Hillsborough family
The secondary victim must:
- Have a close tie of love and affection with a primary victim - presumed between parent/child and spousal relationships, must be proved for others
- Witness the event with their own unaided senses - television is not sufficient
- Be proximate to the event or its immediate aftermath
- Receive the psychiatric damage as a result of a shocking event
Case - showing that psychiatric injury must be diagnosed
Behren and Ors v Bertram Mills Circus Ltd (1957) - elephant stampede
Case - showing that expected deaths do not qualify as not sudden i/r/t psychiatric injury
Sion v Hampstead Heath Authority (1994) - died a fortnight later
Case - showing that rescuers cannot claim primary or secondary victim status
White v Chief Constable of South Yorkshire (1998) - Hillsborough police
What is occupiers liability?
The duty owed by occupiers to those who come onto their land.
What is the test applied for determining whether someone owes occupiers liability, and what is the key case showing this?
“Occupational control”. More than one party may have this. Wheat v E Lacon and Co Ltd (1966) - pub fall landlord and owner
What Act of Parliament imposes a duty of care between occupiers and lawful visitors? What types of premises do this cover? What are the claimable forms of damage?
Occupiers Liability Act 1957. Land, buildings and vehicles. Death, personal injury and damage to property.
What duty of care is owed to a lawful visitor?
“to ensure that the visitor is reasonably safe in using the premises for the purposes by which he was invited or permitted to be there”
Give three examples of types of lawful visitors.
Invitees
Licensees - people with express or implied permission to be there
Those who enter pursuant to a contract
Those entering in exercising a statutory right
Implied license at common law by repeated unprevented trespass
Case - example of implied licence through repeated unprevented trepass
Lowery v Walker (1911) - footpath horse
What is the normal standard of care owed by an occupier, and what are the two exemptions to this?
The standard is that of a reasonable occupier.
Exemptions are:
- The occupier must be prepared for children to be less careful than adults
- The occupier may anticipate that someone there professionally would guard against any special risks
Case - example of extra care owed in relation to children i/r/t occupiers liability
Jolley v Sutton (2000) - boat repair
Case - example of duty owed to experts i/r/t occupiers liability
Roles v Nathan (1963) - chimney sweep
What effect does a warning sign have on liability?
It discharges the duty owed if it would allow visitors to be reasonably safe.
Case - example of warning sign not being required for obvious danger
Darby v National Trust (2001) - swimming pool drowning
What two conditions need to be satisfied for an occupier not to be liable for dangers created by an independent contractor?
- Occupier has acted reasonably in circumstances of entrusting the work to the contractor
- Occupier took reasonable steps to satisfy themselves work was properly done and contractor was competent
Case - example of occupier being liable for dangers of independent contractor
Bottomley v Todmorden Cricket Club (2003) - firework insurance
What Act of Parliament imposes liability with regard to trespassers and those who exceed their permission? What are the claimable forms of damage?
Occupiers Liability Act 1984. Death and personal injury.
What are the three conditions for the occupier to owe a duty of care to a trespasser or non-visitor under the relevant Act?
- Occupier is aware of a danger or believes it exists.
- Occupier knows or believes another is in or may come into vicinity of danger.
- The risk is one where protection may be reasonably expected.
What is the standard of care owed to a trespasser under the relevant Act?
Reasonable as of circumstances
Case - showing that reasonable care was taken i/r/t trespasser liability
Ratcliff v McConnell (1997) - college pool injury
Case - showing that warning signs may discharge duty to trespassers i/r/t trespasser liability?
Tomlinson v Congleton (2003) - lake diving
What are the three defences available in occupiers liability cases, i/r/t both visitors and non-visitors?
- Volenti non fit injuria - risks willingly accepted by visitor
- Contributory negligence - visitor failed to take reasonable care
- Exclusion of liability - may be changed by occupier.
