Unit A4 Questions Ollie Flashcards
General Damages.
designed to compensate the Claimant for the direct effects of the incident
Physical - pain and suffering;
impairment; disfigurement.
Mental anguish.
Reduced quality of life
Special Damages.
compensate a Claimant for monetary losses (including expenses) that they may have incurred because of a Defendant’s wrongful actions.
Loss of earnings. Loss of future earnings. Medical bills. Travel expenses (such as taxi fares). Future medical care costs. Costs associated with cancelled trips or altered plans.
A 13 year old boy is riding on the back of a milk delivery van when he falls and is injured. The boy has been helping the milkman to deliver milk even though doing this was forbidden by the dairy that employs the milkman.
(a) Explain with reasons which of the parties concerned may have a civil liability at common law for the
injury. Use case law to support your answer where appropriate. (5)
(b) An action alleging negligence by the milkman is brought on behalf of the injured boy.
Outline possible defences against such an action AND, in EACH case, relate your answer to the scenario given. (6)
(c) The negligence claim is to be managed in accordance with the relevant pre-action protocol. Identify FIVE possible documents that the defendant may have to send to the claimant under this protocol. (5)
(d) Following this accident the milkman was dismissed for gross misconduct for a serious breach of safety
rules. The milkman considers this to be unfair and brings an action for unfair dismissal to an Employment Tribunal.
(i) Outline the orders that the Employment Tribunal may make if they find in the milkman’s favour. (3)
(ii) Identify the body that would hear any appeal from the decision of the Employment Tribunal. (1)
(a) The milkman - if he has behaved negligently; Relevant case -(Donoghue v Stephenson 1932)
The dairy will have vicarious liability; Milkman in the course of employment; Breaking the rules does NOT remove vicarious liability; Relevant case - (Rose v Plenty)
(b) Denial of facts regarding the injury; out of time case brought too late; no duty of care owed to the boy; duty not breached – with reference to foreseeability or reasonableness; damage not arising from the breach – boy injured through some other cause; type of damage not reasonably foreseeable; volenti non fit injuria; contributory negligence; dairy being sued, milkman outside course of employment.
(All these defences need some explanation relevant to the scenario)
(c) Accident book entry, first-aider report, surgery record, foreman / supervisor accident report, safety representatives accident report, RIDDOR report to HSE, other communications between defendants and
HSE, minutes of Health and Safety Committee meeting(s) where accident/matter considered, report to DSS, pre-accident risk assessment, post- accident re-assessment, other relevant (eg training or information
records).
(d) (i) Reinstatement - returned to original job and conditions / different job & different conditions;
Rengagement– returned to same employer - different job or conditions; Compensation – financial award for loss of employment, etc.
(d) (ii) Employment Appeal Tribunal
A child is struck by a train after getting onto a railway line through a section of damaged fencing. The fencing had been damaged for some time and the damage had been reported to the body in control of the railway two months previously.
In relation to the body that is occupying or in control of the railway in these circumstances:
(a) Identify the statute that creates civil liability (1)
(b) Outline the nature of the duties and the key provisions of this statute (9)
(a) Occupiers Liability Act 1984
(b) OLA 84 imposes duties on occupiers / controllers of premises or land; the duty includes unlawful visitors / trespassers; the duty relates to the state / condition of the premises; the dutyholder is required to take such care as is reasonable in the circumstances; warnings (signs) may discharge the duty in certain circumstances; no liability exists where the risk is clear and accepted.
Key provisions include:
Occupier to be aware of danger or has reasonable grounds to believe it exists; occupier knows or has reasonable grounds to believe that person(s) are in the vicinity of the danger or may come into the vicinity; the risk is one against which, in all the circumstances, the occupier would be reasonably expected to provide protection
An employee suffered a fractured skull(a)
Outline possible relevant breaches of HSWA 1974 and MHSWR 1999. (10)
(b) The injured employee intends to bring a negligence claim (delict in Scotland), against his employer. With reference to relevant case law outline what the employee will have to show in order for his claim to succeed. (6)
(c) Shortly after the injured employee brings his negligence claim he is dismissed for “a serious breach of safety rules”. The injured employee considers this to be unfair and so decides to bring further
proceedings, this time for unfair dismissal.
(i) Identify the body that would hear such a claim. (1)
(ii) Outline the orders that could be made if the employee wins his dismissal case. (3)
(a) Possible breach HASWA s2(1) & 2(2);s4;s7; s36 - offence due to act / default of another person - eg supervisor / manager instructs employee to use FLT as means of access; s37 - offence committed with consent / connivance or attributable to neglect of Director, Manager, Secretary etc.
Possible breach MHSWR r3 no S+S risk assessment (YP? N/EM?); r4 not applying principles of prevention; r7 no H&S assistance / competent person; r13 inadequate / no training in safe access / Working ant height
(b) Actions = “double-barrelled action” civil claim involving a tort of negligence AND breach of statutory duty.
Negligence: need to prove (i) a duty of care owed by company to employee (ii) accident was foreseeable (managers aware of bad practice) (iii) DoC was breached (iv) breach of DoC led to injury; (must refer to scenario) [Case law: Wilsons & Clyde Coal v English (1938);
Civil claim for breach of statutory duty: need to prove
(i) there is a statutory duty imposed on the defendant (ii) the claimant is a class of person the statute is designed to protect (iii) the injury sustained is one the statute is designed to prevent (iv) the defendant breached the statute (v) the breach caused the injury
(vi) the action is not statute barred (out of time); (must refer to scenario and relevant statutes - MHSWR, WAHR, PUWER)
Case law: must refer to Corn v Weirs Glass
(c)(i) Employment Tribunal; (ii) re-instatement; award / financial compensation - loss of earnings etc
Needs looked at
a) With reference to relevant case law, explain the meaning of ‘vicarious liability’ in civil law AND
describe the circumstances in which an employer will have vicarious liability for the acts of employees.
(5)
(b) Describe the principle of `strict liability’ in civil law. Illustrate your answer with ONE example of where such liability exists AND explain clearly the criteria for liability in the example you choose. (5)
(a) Vicarious liability involves one party being liable for the acts of another. An employer has VL for the acts of employees where the employee is acting is in the course of his employment and carries out a negligent act that results in harm to a third party; relevant case law includes: Rose v Plenty [1976] Also relevant is the employer’s common law duty to provide safe and competent fellow employees (see, for example, Hudson v Ridge Manufacturing Co Ltd [1957]).
(b) Strict liability in civil law is liability without the need to prove fault, negligence or intent. In the case of Rylands v Fletcher (1868) where something else brought onto the land that was not naturally there, escaped and caused mischief in circumstances where the mischief was foreseeable. Additionally the Employer’s Liability (Defective Equipment) Act - imposes strict liability on employer with respect to injury caused by defective work equipment even ifdefect attributable wholly or in part to a third party.
With the aid of relevant case law, explain the reason for the introduction of the Employer’s Liability (Defective Equipment) Act 1969 and describe the nature of the liability created by the Act. (10)
Employer’s Liability (Defective Equipment) Act: introduced to correct the outcome of Davie v New Merton Board Mills Ltd (1958) which made it difficult for an employee injured at work by the use of defective equipment to recover damages from their employer where reasonable steps had been taken by the employer and the defect was found to be latent (a manufacturing fault); EL(DE)A allows an employee to recover damages from their employer when injured in the course of employment through the use of defective equipment supplied for the employee’s use even though the defect was wholly or partly the fault of a third party (the manufacturer); EL(DE)A imposes strict liability on employer with respect to injury caused by defective work equipment even if defect attributable to a third party; strict liability = liability without the need to prove fault, negligence or intent; the employer can then claim damages against the manufacturer. Knowles v Liverpool City Council extended meaning of “equipment” to materials used at work
The Occupiers’ Liability Acts 1957.
The Occupiers Liability Act 1957 places a duty of care on an occupier of a premises towards a lawfu l visitor to those premises. If the occupier breaches that duty of care and injury to the visitor occurs, the occupier may be liable for damages.
A lawful visitor under OLA 1957 is someone who has been invited onto the premises by the occupier. It also includes individuals who might enter the premises when exercising a legal duty (e.g. HSE).
The Occupiers Liability Act 1984.
The Occupiers Liability Act 1984 imposes a duty on Occupiers for persons who are not “lawful
visitors.” (for example, Trespassers and those who exceed their permission).
Whilst it may at first appear harsh to impose a duty on occupiers for those that have come onto their land uninvited and without permission, this situation arose because of the case of Hetherington v British Railways Board (1972.)
The 1984 OLA, therefore, extends the duty of care to “unwelcome visitors” if:
The Occupier is aware of the danger or has reasonable grounds to believe that it exists. He knows or has reasonable grounds to believe the other is near the danger or may come into the vicinity of the danger.
The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
(a) Outline the defences available to a defendant who, in a civil case, is being sued in an action for common law negligence. (6)
(b) Outline factors which will be considered when determining the level of damages paid to a successful claimant. (4)
(a) Denial of facts regarding the injury; out of time case brought too late; no duty of care owed to the plaintiff; duty not breached – with reference to foreseeability or reasonableness; damage not arising from the breach – plaintiff injured through some other cause; type of damage not reasonably foreseeable; volenti non fit injuria; contributory negligence;. (All these defences need some explanation)
(b) Factors taken into consideration in determining the level of damages: degree of disability; the loss of earnings and/or opportunities; pain and suffering; medical costs and expenses; the cost of special adaptations; the cost of care; loss of amenity; and contributory negligence might result in a reduction of damages awarded.
(a) Outline the main defences to a civil action for breach of statutory duty. (8)
(b) Where two or more parties act jointly to commit a negligent act they are said to have joint and several liability
For such negligence. Outline the meaning of “joint and several liability” in these circumstances. (2)
(a) There is no statutory duty imposed on the defendant - eg there is no a duty on an employer under HSWA to provide welfare facilities for non-employees; the claimant is not a class of person the statute is designed to protect (eg a trespasser / not an employee); the injury sustained is not one the statute is designed to prevent; (iv) the defendant did not breach the statute; the breach did not cause the injury; the action is statute barred; the action is out of time. Relevant case law - Corn v Weirs Glass (Hanley) Ltd
(b) All parties involved in committing the negligent act are individually liable for the full amount of damages. Such damages may be recovered in full from any one of the negligent parties following a successful civil action. The party thus sued may then claim a contribution from the others who are jointly liable.
