Unit 3 - Rules of Tort, Theory of Tort, Negligence, Occupiers Liability

Question 1

What is a tort?

Answer 1

A tort is a non-criminal action which causes damage to a person, property or enjoyment of land.

Question 2

Who is the burden of proof placed on in tort cases, and what is the standard of proof?

Answer 2

The claimant has to prove the tort. The standard is that, on the balance of probabilities, the Defendant is at fault and responsible.

Question 3

In what types of tort is fault required?

Answer 3

Negligence, occupiers liability, psychiatric damage, or pure economic loss caused by negligent misstatement

Question 4

In which types of tort is fault not required?

Answer 4

Nuisance, vicarious liability and Rylands v Fletcher cases

Question 5

Why is pure economic loss generally not actionable?

Answer 5

This would place no reasonable limit on a defendant’s liability and “open the floodgates”.

Question 6

What is negligence?

Answer 6

A breach in duty of care.

Question 7

What is the test used for establishing whether a duty of care should be created, and what are the three steps?

Answer 7

Caparo test - Caparo v Dickman (1990) - misvalued shares

1. Damage must be reasonably foreseeable - objective test
2. There must be a relationship of proximity between the parties - close in time, space, and relationship
3. It is fair, just and reasonable to impose a duty of care

Question 8

Case - showing that police do not owe a duty of care in the detection of crime

Answer 8

Hill v Chief Constable of West Yorkshire (1988) - Yorkshire Ripper

Question 9

What is the definition of a breach in the duty of care?

Answer 9

“not doing something a reasonable person would do so, or doing something a reasonable person would not do” - Blyth v Birmingham Water Works (1856)

Question 10

Case - showing that professionals will be judged by the standard of a reasonable professional i/r/t breach of duty of care

Answer 10

Bolam v Frien Hospital Management Committee (1957) - ECT fracture

Question 11

Case - showing that children will be judged by the standard of a reasonable child i/r/t breach of duty of care

Answer 11

Mullin v Richards (1998) - ruler fight

Question 12

What four factors are used in determing whether the defendant acted reasonably i/r/t breach of duty of care?

Answer 12

1. Cost of precautions
2. Importance of activity
3. Degree of risk
4. Seriousness of injury

Question 13

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?

Answer 13

The greater the risk, the more precautions need be taken to show reasonableness. Bolton v Stone (1951) - cricket balls

Question 14

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?

Answer 14

The cost of precautions are not expected to outweigh the risk. Latimer v AEC (1952) - factory floor slip

Question 15

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?

Answer 15

The more serious the potential injury, the greater the level of care required to be considered reasonable. Paris v Stepney Borough (1951) - eye loss

Question 16

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?

Answer 16

Some risk may be acceptable if the risk is socially important. Watt v Hertfordshire County Council (1954) - fireman jack.

Question 17

What are the two requirements for damages caused by a breach of duty of care?

Answer 17

1. The damage must be caused by the breach.

2. The damage must not be too remote.

Question 18

Case - showing that damage must be caused by the breach of duty of care

Answer 18

Barnett v Chelsea Hospital (1969) - undiagnosed poison

Question 19

Case - showing that damage must be foreseeable - the “foreseeability test”

Answer 19

The Wagon Mound (1961) - oil on water

Question 20

Case - showing that extent of damage i/r/t breach of duty of care need not be foreseeable

Answer 20

Smith v Leech Brain (1962) pre-cancerous lip

Question 21

Case - showing that precise chain of damage i/r/t breach of duty of care need not be forseeable

Answer 21

Hughes v Lord Advocate (1962) - sewer explosion

Question 22

Case - example of pure economic loss generally not being recoverable

Answer 22

Spartan Steel and Alloys Ltd v Martin (1972) - steelworks trench

Question 23

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?

Answer 23

Hedley Byrne and Co Ltd v Heller and Partners Ltd (1963)

1. Defendant possesses a special skill relating to the statement
2. The Defendant knows that the Claimant is highly likely to rely on statement
3. The Claimant does rely on it, and incurs financial loss as a result.
4. It was reasonable for the Claimant to rely on the statement.

Question 24

Case - example of reliance being refused i/r/t special relationship regarding negligent misstatement

Answer 24

JEB Fasteners v Bloom (1983) - company acquisition

Question 25

What is the difference between a primary and secondary victim i/r/t psychiatric injury?

Answer 25

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.

Question 26

Case - showing that psychiatric damage need not be foreseeable

Answer 26

Page v Smith (1996) - car accident chronic fatigue

Question 27

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?

Answer 27

Alcock v Chief Constable of South Yorkshire (1992) - Hillsborough family

The secondary victim must:

1. Have a close tie of love and affection with a primary victim - presumed between parent/child and spousal relationships, must be proved for others
2. Witness the event with their own unaided senses - television is not sufficient
3. Be proximate to the event or its immediate aftermath
4. Receive the psychiatric damage as a result of a shocking event

Question 28

Case - showing that psychiatric injury must be diagnosed

Answer 28

Behren and Ors v Bertram Mills Circus Ltd (1957) - elephant stampede

Question 29

Case - showing that expected deaths do not qualify as not sudden i/r/t psychiatric injury

Answer 29

Sion v Hampstead Heath Authority (1994) - died a fortnight later

Question 30

Case - showing that rescuers cannot claim primary or secondary victim status

Answer 30

White v Chief Constable of South Yorkshire (1998) - Hillsborough police

Question 31

What is occupiers liability?

Answer 31

The duty owed by occupiers to those who come onto their land.

Question 32

What is the test applied for determining whether someone owes occupiers liability, and what is the key case showing this?

Answer 32

“Occupational control”. More than one party may have this. Wheat v E Lacon and Co Ltd (1966) - pub fall landlord and owner

Question 33

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?

Answer 33

Occupiers Liability Act 1957. Land, buildings and vehicles. Death, personal injury and damage to property.

Question 34

What duty of care is owed to a lawful visitor?

Answer 34

“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”

Question 35

Give three examples of types of lawful visitors.

Answer 35

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

Question 36

Case - example of implied licence through repeated unprevented trepass

Answer 36

Lowery v Walker (1911) - footpath horse

Question 37

What is the normal standard of care owed by an occupier, and what are the two exemptions to this?

Answer 37

The standard is that of a reasonable occupier.

Exemptions are:

1. The occupier must be prepared for children to be less careful than adults
2. The occupier may anticipate that someone there professionally would guard against any special risks

Question 38

Case - example of extra care owed in relation to children i/r/t occupiers liability

Answer 38

Jolley v Sutton (2000) - boat repair

Question 39

Case - example of duty owed to experts i/r/t occupiers liability

Answer 39

Roles v Nathan (1963) - chimney sweep

Question 40

What effect does a warning sign have on liability?

Answer 40

It discharges the duty owed if it would allow visitors to be reasonably safe.

Question 41

Case - example of warning sign not being required for obvious danger

Answer 41

Darby v National Trust (2001) - swimming pool drowning

Question 42

What two conditions need to be satisfied for an occupier not to be liable for dangers created by an independent contractor?

Answer 42

1. Occupier has acted reasonably in circumstances of entrusting the work to the contractor
2. Occupier took reasonable steps to satisfy themselves work was properly done and contractor was competent

Question 43

Case - example of occupier being liable for dangers of independent contractor

Answer 43

Bottomley v Todmorden Cricket Club (2003) - firework insurance

Question 44

What Act of Parliament imposes liability with regard to trespassers and those who exceed their permission? What are the claimable forms of damage?

Answer 44

Occupiers Liability Act 1984. Death and personal injury.

Question 45

What are the three conditions for the occupier to owe a duty of care to a trespasser or non-visitor under the relevant Act?

Answer 45

1. Occupier is aware of a danger or believes it exists.
2. Occupier knows or believes another is in or may come into vicinity of danger.
3. The risk is one where protection may be reasonably expected.

Question 46

What is the standard of care owed to a trespasser under the relevant Act?

Answer 46

Reasonable as of circumstances

Question 47

Case - showing that reasonable care was taken i/r/t trespasser liability

Answer 47

Ratcliff v McConnell (1997) - college pool injury

Question 48

Case - showing that warning signs may discharge duty to trespassers i/r/t trespasser liability?

Answer 48

Tomlinson v Congleton (2003) - lake diving

Question 49

What are the three defences available in occupiers liability cases, i/r/t both visitors and non-visitors?

Answer 49

1. Volenti non fit injuria - risks willingly accepted by visitor
2. Contributory negligence - visitor failed to take reasonable care
3. Exclusion of liability - may be changed by occupier.