Section 4. The law of tort Flashcards
(198 cards)
1
Q
What does tort mean?
A
A civil wrong. The word comes from the French for ‘wrong’. The aim of the law of tort is to compensate an injured victim for the wrong done to them
2
Q
What is a claimant?
A
An injured victim of a wrongdoing. The claimant brings an action to recover compensation for their loss or damage
3
Q
What is a defendant?
A
The person or body responsible for the loss or damage and who, generally, has been at fault
4
Q
What does remedy mean?
A
An order made by a court to enforce or satisfy a tort claim. It is usually damages or an injunction
5
Q
What are ‘damages’
A
The payment of money as compensation for the loss or damage suffered
6
Q
What is an ‘injunction’?
A
A court order addressed to the defendant to stop doing something
7
Q
In tort law, who is a civil case started by?
A
A person who has suffered loss or injury.
-The injury will be some form of personal injury
-The injury may be minor or severe, involving lifelong care
-It may also involve damage to some property or an interference with a right related to property
8
Q
What does the claimant have to do in a civil tort claim?
A
-Prepare the claim and the initial evidence to show that it is valid
-Suggest the amount of damages they intend to claim, so that the claim can be issued in the correct court and to follow the correct tracking procedure
9
Q
In a civil trial, what will a judge sit alone to decide?
A
-The liability- whether the claimant has proved the case or whether the defendant has a valid defence. The standard of proof will be on the balance of probabilities
-The amount of damages to be paid or, if another remedy should be ordered, if this is more appropriate
-If the winning party is entitled to the payment of their legal costs by the losing party. In civil cases the general rule is that the loser pays the winner’s legal costs in addition to their own costs
10
Q
What can the parties appeal against the judge of the decision for?
A
-Against liability-because the judge might have misdirected themselves on the relevant law, or
-Against the amount of damages awarded-too much or too little
11
Q
Who are usually the parties involved in the law of tort?
A
-The claimant is generally an individual. If the claimant is under the age of 18, their parent or litigation friend will take the action on their behalf
-The defendant can be either an individual person, or in some cases, a business which may exist in law as a company or a partnership
12
Q
What is the standard of proof in civil cases?
A
‘The balance of probabilities’
13
Q
Why is the standard lower in civil cases than in criminal cases?
A
-In a criminal case the defendant is punished and could lose their freedom if found guilty
-In a civil case the defendant is found responsible for the damage/injuries and only has to compensate the injured party
14
Q
What are the defences for civil cases?
A
There are fewer defences available than in criminal law. However, the defendant can dispute the claimant’s case and, in some cases, suggest that the claimant wholly or partly caused their own injury
15
Q
What are the interests protected in tort law?
A
-Personal harm, which can include physical, psychological and reputation all harm and personal freedom. This interest will include the torts of assault, battery and false imprisonment. Reputational harm is covered by the tort of defamation which in turn can be libel or slander
-Harm to property, which can include direct and indirect interference with land and rights over land such as use and enjoyment of land. This interest will include the torts of trespass and private nuisance
-Harm to financial interests
16
Q
What are the aims of tort law?
A
-To provide compensation in the form of damages to injured victims
-To achieve or provide justice for an injured victim-this can be achieved by the payment of compensation but money can only partly achieve justice for a victim who has suffered serious physical injuries
-It is morally fair that a person who has caused injury to another should be required to pay for the suffering caused, penalising a defendant for their fault; it may also act as a deterrent to others not to commit the same or similar actions
-Loss distribution- there is a view that the greater liability should be imposed on businesses or companies whose activities cause physical injury and damage as they are in the best position to spread the cost of losses associated with their activities either directly, by increasing the price of their products and services, or indirectly, by purchasing liability insurance.
-To achieve policy aims of improving standards- for example, of products sold or the quality of the environment, by making those who sell defective goods or pollute rivers pay for their shortcomings actions
-
17
Q
What is the ‘compensation culture’?
A
This refers to an attitude to sure for even the most trivial reasons or where only minor injury or damage has been caused.
18
Q
What do critics of ‘compensation culture’ suggest?
A
That people’s approach to risk taking has changed to them being less risk averse because, if something goes wrong, a claim for compensation can be taken. It is argued that people should take greater responsibility and accept responsibility for accidents which are their own fault.
19
Q
What has been done to counter ‘compensation culture’?
A
The compensation act 2006 was passed to regulate claims management companies. It became an offence to run an unauthorised claims management company. This authorisation was intended to improve standards of service and to reduce instances of cold calling
20
Q
What are the differences between tort law and contract law?
A
The main difference between the 2 forms of law is the relationship between the parties.
-Contract law- there will be a relationship because of a previously entered contract, whether written or oral. It will contain agreed terms as to, for example, the nature and quantity of goods and services and the price. The parties will know at the outset the terms and what they each have to do to perform their respective terms
-Tort law- the parties will not have a formal legal relationship before the incident, but a relationship commences when one of the parties is injured or suffered loss or damage. This relationship is used as the initial basis of a claim
21
Q
What are the distinctions between tort law and criminal law?
A
- The purpose of the law:
Tort law-to provide a form of compensation for those injured by the wrongful, but not necessarily criminal, acts of others - Because of the effect of punishment the standard for judging whether an action is criminal is high. If the action does not meet this high standard, then it may amount to a civil, tortious wrong.
- Judiciary:
-Tort law- a legally qualified judge decides whether a person is liable, using formal reasons
-Criminal law- a lay person, a magistrate or a jury decides whether a person is in breach of the law, unless there is a guilty plea - Consequences of breaching the law:
-Tort law- merely concerned with compensating the victim for the injuries suffered. Except in nuisance claims, it will not be concerned with the offender’s future behaviour
-Criminal law- some form of punishment where the offender repays a debt to society. The ultimate aims of punishment are reparation, deterrence and reform so that the offender addresses their future behaviour.
22
Q
What are 2 examples of situations that where a tort of negligence can apply as a result of an accident?
A
-A car crash in which Vehicles are damaged and a driver and/or passenger(s) are injured. The injured person will want to claim compensation for their injuries and for damage to their vechile
-People being injured at work or through medical negligence
23
Q
In what case was negligence defined?
A
Blyth v Birmingham waterworks co. (1856)
24
Q
What was negligence defined as in Blyth v Birmingham waterworks co. (1856)
A
“Failing to do something which the reasonable person would do or doing something which the reasonable person would not do
According to this definition, negligence can arise from either an act or an omission
25
What is negligence?
An act or a failure to act which causes injury to another person or damage to their property
26
What does the claimant have to prove in a negligence claim?
That the defendant was at fault and is to blame for the injuries or damage.
-The level of fault is on the balance of probabilities- it is more likely than not the defendant’s fault caused the injuries or damage
-The burden of proving this fault and providing evidence is on the claimant
27
In a successful claim for negligence, the person who caused the injury or damage is only liable if:
-The owe the claimant a duty of care, and
-They breached this duty, and
-The breach causes reasonably foreseeable injury or damage
28
What must be proved for negligence?
-Duty of care: Reasonably foreseeable harm, proximity between the parties, fair, just and reasonable to impose duty
-Breach of duty: Defendant falls below standard of care appropriate to the degree of risk
-Damage caused: Defendant’s breach causes damage, damage is reasonably foreseeable
29
What is the duty of care?
-The idea of a duty of care in the tort of negligence is to establish a legal relationship between the parties.
-It has developed through judicial precedent- judges making decisions in cases. The modern law of negligence began with the case of Donoghue v Stevenson (1932). In the judgements, the Law Lords used used the principles from Heaven v Pender (1883) to set out when a duty of care is owed
30
In what case was ‘the neighbour principle’ established?
Donoghue v Stevenson (1932)
This cases established for the first time the broad principles of owing a legal duty of care and general liability in negligence. This is known as ‘the neighbour principle’
31
What is the neighbour principle?
The person who is owed a duty of care by the defendant. It is not the person living next door: it is anyone you ought to bear in mind, who could be injured by your act or omission
32
What’s happened in the development of the duty of care?
-In Anns v Merton London Borough council (1978) a 2 stage approach was developed by Lord Wilberforce where there was sufficient legal proximity between the parties unless there were policy reasons for not doing so
-Junior Books v Veitchi (1983) appeared to be a unique decision in negligence as it involved a purely contractual relationship between the parties.
-It was decided that the parties were sufficiently proximate to each other and there was a duty between them
-It was found that this was not limited to a duty to avoid causing foreseeable harm to persons or property, but also created a duty to avoid pure economic loss, as a result of the work that had been defective
33
In what case was the Camaro test established?
Camaro v Dickman (1990)
34
What is the Caparo test?
A 3 part test for deciding, in all cases, better a duty of care existed:
1. Was damage or harm reasonably foreseeable?
And
2. Is there a sufficiently proximate (close) relationship between the claimant and the defendant?
And
3. Is it fair, just and reasonable to impose a duty
35
What happened in Caparo v Dickman (1990)
-The claimant company wanted to take over another company- Fidelity Limited. They look3d at the statutory accounts prepared by the defendant, which showed that the company made a profit.
-Based on these accounts, the claimants decided to take over Fidelity. After completing the purchase, they inspected the detailed accounts which showed a large loss. They sued the defendant in negligence for their loss
-The House of Lords, when deciding whether the defendant owed a duty of care, set the 3 part test
-They decided that the defendant did not owe a duty of care as the accounts were prepared for Fidelity and for statutory reasons, and not for prospective buyers
36
What is damage or reasonably foreseeable harm?
Whether the injury or damage is reasonably foreseeable depends on the facts of the case. An example of this is the case of Kent v Griffiths (2000)
37
What happened in Kent v Griffiths (2000)
-The claimant was suffering an asthma attack and an ambulance was called to take her to hospital. Despite repeated assurances by the control centre and for no obvious reason, the ambulance failed to arrive within a reasonable time.
-As a result, the claimant suffered a respiratory arrest
-The court decided it was reasonably foreseeable that the claimant would suffer further illness if the ambulance didn’t arrive promptly
-No good reason was given why it failed to do so. A duty of care came into existence when the control centre accepted the call and, as they failed in this duty, they were liable
38
What is proximity of relationship?
-Even if the harm is reasonably foreseeable, a duty of care will only exist if the relationship between the claimant and the defendant is sufficiently close or proximate
39
What is an example to demonstrate proximity of relationship?
Bourhill v Young (1943)
40
What happened in Bourhill v Young?
-A pregnant woman heard an accident as she got off a tram. The accident was caused by a motorcyclist who died in the accident. She approached the scene of the accident and saw blood on on the road
-She suffered such shock from what she saw that she later gave birth to a still born baby. She sued the relatives of the dead motorcyclist
-Under the neighbour test, she had to prove that she was proximate, or close, to the motorcyclist so that he owed her a duty of care
-The House of Lords decided that he could not anticipate that, if he was involved in an accident, it would cause mental injury to a bystander
-He was not proximate to her and did not owe her a duty of care
41
What could have been a reason for the decision in Bourhill v Young?
Because Mrs Bourhill was not related to the victim and, if she could sue, it would open the floodgates to claims
42
What is meant by fair, just and reasonable to impose a duty?
-The courts are often reluctant to find that it is ‘fair just and reasonable’ to impose a duty of care on public authorities such as police.
-In the case of Hill v Chief Constance of West Yorkshire (1990), it was pointed out that imposing a duty of care on police (and allowing them to be sued) could lead to policing being carried out in a defensive way, which might divert police resources and attention away from the prevention and detection of crime
-This could lead to lower standards of policing, not higher ones
43
What is the case that illustrates fair, just and reasonable to impose a duty?
Hill v chief cons table of West Yorkshire (1990)
44
What happened in Hill v chief constable of West Yorkshire police?
-The Yorkshire ripper had been attacking and murdering women in Yorkshire and across the North of England.
-The claimants daughter was his last victim before he was caught. By the time of her death, the police had enough information to arrest him but failed to do so.
-The claimant alleged that the police owed her daughter a duty of care
-It was decided by the House of Lords that the relationship between the victim and the police was not sufficiently close for the police to owe a Duty of care to the victim, ans that it was not fair, just and reasonable for the pi Luce to owe a duty of care to the general public
-The police knew that tge killer might stroke again, but they had no way of knowing who the victim might be
45
What is the definition of occupiers?
-Potential defendants are the same under either act:
-Occupiers of premises who may be, but do not have to be, the owner or tenant of the premises. There is in fact no statutory definition of ‘occupier’
46
What is the test for deciding the occupier in th OL act 1957?
-It’s found in case law
-In practice, a decision of who is in control of premises may be influenced by whose insurance policy covers the premises and will meet a claim
-However, sometimes the courts will find that no one is in control of the premises, leaving the injured visitor with no claim
47
In what cases are occupiers defined for the OLA 1957?
-Wheat v E Lacon & Co Ltd (1966)
-Harris v Birkenhead corporation (1976)
-Bailey v Armes (1999)
48
What happened in Wheat v E Lacon & Co. Ltd?
-The manager of the pub was given the right to rent out rooms in his private area. He had no ownership rights on the premises
-A paying guest fell on an unlit staircase and died
-It was decided that both the manager and his employers could be liable, so there can be more than one occupier of premises
49
What happened in Harris v Birkenhead corporation?
-A local council had served a compulsory purchase notice on a house but had not taken possession or made it secure.
-A 4 year old boy was Injured in the empty house
-It was decided that the council were occupiers as they were effectively in control of the premises
50
What is the definition of premises in the OLA 1957?
-There is no full statutory definition of ‘premises’ except in s1(3)(a) of the 1957 act, where there is reference to a person having occupation or control of any ‘fixed or moveable structure, including any vessel, vehicle and aircraft’
51
Besides the obvious houses, land etc what else has been held as ‘premises’?
-A ship in dry dock
-A vehicle
-A lift
52
What do lawful adult visitors include in the OLA 1957?
-Invitees
-Licensees
-Those with contractual permission to be on the premises- E.g someone who bought a ticket to an event
-Thise given a statutory right of entry, such as meter readers or a police constable exercising a warrant
53
What are invitees?
Persons who have been invited to enter premises and who have express permission to be there
54
What are licensees?
Persons who have express or implied permission to be on the premises for a particular period and purpose. In Lowery v Walker (1911), in a negligence case, a licence to be on the land was implied from repeated use by trespass which the defendant had not stopped
55
What is said about children in the OLA 1957?
Children aren’t defined in the act, but the age of the child affects how the standard of care to be taken by the occupier will be assessed
56
What is said about workers in the OLA 1957?
Again, these are not defined by the act, but it will have to be decided whether the worker is injured by something that relates to work or something else
57
What is the duty owed to lawful adults and when is that duty breached?
-An adult visitor lawfully on premises is owed a common duty of care
-According to s2(2), this means that the occupier doesn’t have to make the visitor completely safe in the premises- only to do what is reasonable
58
Which cases show the duty owed to a lawful visitor?
-Laverton v Kiapasha Takeaway Supreme (2002)
-Dean and Chapter of Rochester Cathedral v Debell (2016)
59
What happened in Laverton v Kiapasha Takeaway supreme (2002)?
-The defendants owned a small takeaway food shop. They had fitted slip resistant floor tiles and used a mop and bucket to clean the floor when it had been raining
-The claimant went into the crowded shop when it was raining.
-She slipped and broke her ankle. The court of appeal decided that the shop owners had taken reasonable care to ensure their customers were safe
-They didn’t have to make the premises completely safe and were not liable
60
What happened in Dean and Chapter of Rochester Cathedral v Debell (2016)
-The claimant was injured when he tripped and fell a small piece or concrete protruding about 2 inches from the base of a traffic billard in the precincts of a cathedral. The CoA decided that:
-Tripping, slipping and falling are everyday occurrences. The obligation on an occupier is to make premises reasonably safe for visitors, not to guarantee their safety
-A visitor will be reasonably safe even if there may be visible minor defects which carry a foreseeable risk of causing an accident or injury
61
What do the judgements in the duty of care cases show?
-They emphasise that the common duty of care imposes a duty on the occupier to keep the visitor reasonably safe, not necessarily to maintain completely safe premises
-If these cases had been decided in favour of the visitors, it could have opened the floodgates to a tide of claims against occupiers, and created a very high level of responsibility for the safety of visitors
-The common duty of care, however, does not extend to liability for pure accidents. A duty of care for a specific risk cannot last indefinitely, where there could be other causes of the damage
62
What is the duty of care owed to a lawful child and when is this duty breached in the OLA 1957?
-The occupier will owe children coming onto the premises the common duty of care, but there is an additional special duty owed to child visitors.
-Under s2(3)(a) of the OLA 1957 the standard of care for children is measured subjectively, according to the age of the child
-The younger the child, the greater the care that the occupier must take to make sure the child is not injured
-The reasoning is logical: what mate not pose a threat to an adult may be very dangerous to a child
-The occupier should guard against any kind of ‘allurement’ or attraction which places a child visitor at risk of harm
63
What case shows that if an allurement exists, there will be no liability on the occupier if the damage or injury suffered is not foreseeable?
Holley v London Borough of Sutton (2000)
64
What happened in Jolley v London Borough of Sutton (2000)
-The council failed to move an abandoned boat that had been on it’s land for 2 years. Children regularly played on and in the boat, which was a potential danger
-When 2 14 year old boys jacked the boat up, it fell on one of them, causing serious injuries
-The HoL decided the council were liable as it was foreseeable that children would play on an abandoned boat
-It was not necessary for the council to foresee exactly what children would do in their play
-Children often find ways of putting themselves in danger, which needs to be taken into account by an occupier when considering how to keep them safe
65
What is the duty owed to a lawful worker and when that duty is breached in the OLA 1957?
-The occupier owes a common duty of care to workers coming on the premises to carry out repairs to the property or anything on it
-By s2(3)(b) of the 1957 act an occupier will not be liable where workers do not guard against risks which they should know about or be expected to know about
66
What case protects occupiers from being liable for risks that workers should know about or are expected to know about?
Roles v Nathan (1963)
67
When does the defence in Roles v Nathan apply?
-It only applies where the worker is injured by something related to their work
-If the worker is injured by something different, the occupier will still owe the common duty of care
-In Ogwo v Taylor, it was held that a duty could be owed to a rescuer (in this case a firefighter) if they are injured by something incidental to the rescue
-Section 2(5) provides that 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
68
What 3 requirements must apply for an occupier to pass on the claim to an independent contractor?
1. Must be reasonable for the occupier to have given the work to the independent contractor. The more complicated and specialist the work, the more likely it will be for the occupier to have properly given the work to a specialist. - Hazeldine v Daw & Son Ltd (1941)
2. The contractor who is hired must be competant to carry out the task. The occupier should check the contractor’s references and make sure they carry insurance. Not being insured could indicate that the contractor is not competent- Bottomley v Todmorden cricket club
3. The occupier must check the work has been properly done. The more complicated and technical the work, and the less expert the occupier, the more likely that the occupier will need to employ an expert such as an architect or surveyor- Woodward v Mayor of Hastings (1945)
69
What happens if occupiers satisfy all conditions for hiring independent contractors?
-The occupier will have a defence to a claim
-The inured claimant will have to claim directly against the contractor
70
What was held in Ferguson v Welsh?
It was held by the HoL that an occupier would not be liable for the unsafe system of work of a sub contractor, since he could not reasonably be expected to supervise it
71
What are the defences for the occupier by claims from lawful visitors for the OLA 1957?
-Volenti (consent)
-Contributory negligence
-Exclusion clauses
-Warning notices
72
What is volenti (consent)?
-It applies for occupiers liability in the same way as negligence
-If it is successfully argued, the defendant will not be liable to pay damages to the claimant, as the claimant has freely accepted to run the risk of injury while on the occupier’s premises
73
What is contributory negligence?
-It is set out in the Law reform act 1945
-The occupier will argue that the claimant is partly responsible for the injuries they have suffered while on the occupier’s premises
-If it is successfully argues the amount of compensation will be reduced by an appropriate amount
74
What are exclusion clauses?
-By giving written warning the occupier will be able to limit or exclude completely their liability for any injury caused to the visitor
-This is the case for residential occupiers, though whether an exclusion clause would work against a child visitor may depend on the child’s age and ability to understand the effect of the exclusion
-In addition, s65 consumer rights act 2015 provides that if there are such notices, say in a shop, they are ineffective and cannot operate as a defence to an occupier if a consumer is injured on the premises
75
What are warning notices?
-If there is a notice warning of a danger, this can be a complete defence for the occupier. A warning can be oral or written. By s2(4)(a) of the 1957 act, a sufficient warning will be decided by the judge on the evidence and varies
-If the premises are extremely dangerous then according to Rae v Mars (UK) Ltd (1990), the visitor should be given specific notice of the danger
-However, if the danger is obvious, and the visitor is able to appreciate it, no additional warning is necessary
76
What case can be used for warning notices in the OLA 1957?
Darby v National trust (2001)
77
What was decided in Darby v National trust?
The court of appeal decided that the risk to swimmers was obvious and there was no duty on NT to warn of an obvious risk
78
What are the remedies of the OLA 1957?
If a claimant is successful, the court can award damages for personal injury and for damaged property (such as clothes).
79
What is a trespasser defined as in the OLA 1984?
-A person who has no permission to be on the occupier’s premises, or
-A lawful visitor who has gone beyond their permission to be on the premises- they have outstayed their welcome, they have been told to leave or have gone into an area where they are not supposed to be e.g. in Tomlinson v Congleton Borough council (2003), when he paddled in the lake he was a lawful visitor, but when he dived in and started swimming he became a trespasser
80
In what scenarios will the occupier owe a duty under the OLA 1984?
The occupier will only owe a duty under s1(3) if:
1. They are aware of the danger or have reasonable grounds to believe it exists
2. They know, or have reasonable grounds to believe, that the other person is in the vicinity of (near to) the danger concerned, or that they might come into the vicinity of the danger (in either case, whether or not the other has lawful authority for being in the vicinity of the danger). In Swain v Natui Ram Puri, a 9 year old boy was injured when he climbed onto the occupier’s roof and was injured when he fell. It was held that the occupier did not have reasonable grounds to believe, or actual knowledge that the child could, or might, enter the vicinity of thr danger. ‘Reasonable grounds to believe’ does not mean ‘ought to have been aware’. The child’s claim failed
3. They may be expected to protect the other person against the risk. In Tomlinson v Congleton Borough council, it was said that as the claimant had freely accepted the risk of injury while swimming the council were not expected to protect him.
81
What is the OLA 1984 mainly concerned with?
-The act is not concerned with risks due to anything other than the danger
-The standard of care is objective. What is required of the occupier depends on the circumstances of each case
-The greater the degree of risk, the more precautions the occupier will have to take
82
What factors should be taken into account when looking at the duty owed to a trespasser and the precautions necessary?
-Nature of the premises
-Degree of danger
-Practicality of taking precautions
-Age of trespasser
83
What does the OLA 1984 say about adult trespassers?
-Under the 1984 act, the courts have introduced the concept of obvious dangers, especially for adult trespassers
-The occupier will not be liable if the trespasser is injured by an obvious danger
84
What case includes adult trespassers?
Ratcliff v McConnell (1999)
85
What is the point of law in Ratcliff v McConell (1999)
Occupier does not have to warn adult trespassers of risk of injury against obvious dangers
86
What case shows that the time of day or time of year could be relevant for deciding whether the occupier owes a duty of care?
Donoghue v Folkestone Properties (2003)
87
What case shows that the occupiers do not have to spend a lot of money making premises safe from obvious dangers?
Tomlinson v Congleton Borough council
88
What case shows the occupier will not be liable if they had no reason to suspect the presence of a trespasser?
Higgs v Foster (2004)
89
What happened in Higgs v Foster?
Police office entered onto D’s property to carry out surveillance whilst investigating a crime. Fell into an uncovered pit causing serious injury. C was found to be a trespasser
90
What case shows the occupier will not be liable if they were not aware of the danger, or had no reason to suspect the danger existed?
Rhind v Astbury Water park (2004)
91
What does the OLA 1984 say about warnings?
-Section 1(5) provides that the occupier can discharge his duty to the trespasser by giving a warning of the danger, or in some way discouraging the taking of the risk
-In Westwood v the Post office, in an an action under a different act an adult employee of the post office was injured when he entered an unlocked room which had a warning of danger on the outside
-The post office was not liable as the notice was sufficient warning to an adult
-Whether a warning will be sufficient defence against a child trespasser may depend on the child’s age and understanding
92
What happens in cases involving child trespassers?
The same statutory rules and judges approach apply to child visitors as for adult visitors
93
What case Involved child trespassers?
Keown v Coventry Healthcare NHS trust (2006)
94
What was the legal principle in Keown v Coventry Healthcare NHS trust?
Occupier not liable to child trespasser if there is no danger from the state of the premises
95
What are the defences to claims by trespassers under the OLA 1984?
-Consent (also known as volenti)
-Contributory negligence
96
How is consent a defence to claims by trespassers in the OLA 1984?
-If it is successfully argued, the defendant will not be liable to pay damages to the claimant as the claimant has freely accepted to run the risk of injury while on the occupier’s premises
-This defence is allowed by s1(6) of the 1984 act, if the trespasser appreciates the nature and degree of the risk, more than just it’s existence
97
How is contributory negligence a defence to claims by trespassers in the OLA 1984?
-The occupier will argue that the trespasser is partly responsible for the injuries they have suffered while on the occupiers premises
-If it is successfully argued, the amount of compensation will be reduced by an appropriate amount
98
What are the basic elements of private nuisance?
-Private nuisance concerns neighbours and the competing claims of people to do as they wish on their own land
-It is not unreasonable to expect to be able to behave as you like on your own land. Problems only arise when this behaviour affects a neighbours ability to enjoy their land, and when the use is termed ‘unreasonable’ and amounts to a nuisance
-What is reasonable depends not so much on the defendants actions, but whether the interference caused by that action is sufficient to give rise to a legal action
99
Who can claim in private nuisance?
-The basic rule is that anyone who has the use of enjoyment of land, and is affected by an interference, may claim
-The claimant must have an interest in the land
-This will include being an owner or a tenant but not a member of the owner’s family, such as a child or lodger, who has no interest in the property
100
What variety of activities have been held to amount to private nuisance.
-Fumes drifting over neighbouring land
-Smell from farm animals or from a fish and chip shop, as in Adams v Ursell
-Noise- from a childrens playground, due to gunfire, and from a speedway and motor racing circuit, as in Coventry Lawrence
-Vibrations from industrial machinery
-Hot air rising into other premises
-Fire
-Cricket balls being hit into a garden, as in Miller v Jackson
Etc
101
What can a claimant not take action to protect a right to?
-A view
-Light
-Tv reception
102
What are the courts sometimes prepared to protect in private nuisance?
-Offensive behaviour affecting the character of the neighbourhood, or possibly behaviour which adversely affects property values.
103
What would be examples of private nuisances which the courts sometimes choose to protect?
-Thompson-Schwab v Costaki (1956): the court of appeal decided that the running of a brothel in a respectable residential area of London amounted to a nuisance
-Laws v Florinplace Ltd (1981): an injunction was awarded to prevent premises being converted into a sex shop in an area of shops, restaurants and some housing
104
What are the factors that amount to an unreasonable interference in private nuisance?
-The duration of the interference
-The sensitivity of the claimant
-Locality
-Malice
-Social benefit
105
What duration of the interference amounts to an unreasonable interference in private nuisance?
-To be actionable, the interference is likely to be continuous and at unreasonable hours of the day or night
-In this way, regular, noisy, late night parties might amount to a nuisance, but a noisy one off party to celebrate a special occasion might not
-The fact that the interference is only temporary is not a sufficient reason to avoid a claim if it is an unreasonable interference with the claimant’s use or enjoyment of land
106
What does the sensitivity of the claimant have to do with unreasonable interference?
-If it can be shown that the claimant is particularly sensitive, then the activity may not be a private nuisance
-The law on nuisance is moving away now from the idea of ‘abnormal sensitivity’ to a general test of foreseeability
107
How does locality affect what amounts unreasonable interference?
Nuisance is all about the use of land in the area where it is situated, so the character of the neighbourhood has to be considered. The court will consider whether the area:
-Is purely residential
-Is partly residential and partly commercial or industrial
-Is situated in the town or country
-Has changed in character over time
108
What malice amounts to unreasonable interference in private nuisance?
A deliberately harmful act will normally be unreasonable behaviour and considered a nuisance
109
What social benefit amounts to unreasonable interference in private nuisance?
-If it is considered that the defendant is providing a benefit to the community, the court may consider the actions unreasonable
-However, the opposite view was taken in Adams v Ursell, when a well used fish and chip shop was found to be causing a nuisance to local residents due to smells coming from it, and it was forced to close
-Today, in a case like this, the court could make a positive order for the premises to fit extractors to remove excessive smells, rather than to order an outright ban
110
Who may be sued in private nuisance?
-The person who causes the nuisance, or their successors in title, who have allowed the nuisance to occur.
-The person who is causing, or allowing, the nuisance can be sued
-Where the occupier is not responsible for creating the nuisance, they might still be liable as a result of ‘adopting’ the nuisance
-A defendant can also be liable where the nuisance is the result of natural causes which they are aware of but fail to deal with
111
What are the defences for private nuisance?
-Prescription
-Moving to the nuisance
-Statutory authority
-Volenti or consent
112
How is prescription a defence for private nuisance?
-This is a defence that is unique to nuisance. Id the action has been carried on for at least 20 years, and there has been no complaint between the parties in that time, then the defendant has a prescriptive right to continue
113
How is moving to the nuisance a defence for private nuisance?
The defendant may argue that the claimant is only suffering the nuisance as they have moved closer to the alleged problem, or moved into the area and that there was no issue previously. This does not amount to a defence
114
How is statutory authority a defence for private nuisance?
-As many of the activities that can amount to a nuisance are now regulated or licensed by environmental or other laws, statutory authority is one of the most effective defences
-If a statute provides the only possible remedy, an action in nuisance may not be possible as an alternative
115
How is Volenti or consent a defence for private nuisance?
This may be a defence to a nuisance claim if there are active steps taken by the claimant encouraging the creation of the nuisance
116
What are the possible remedies for private nuisance?
-Injunction
-Abatement
-Damages
117
When would an injunction be a remedy for private nuisance?
-An injunction would generally be prohibitory, ordering the defendant to stop causing the nuisance
-An injunction could also be positive in nature- for example, to order the defendant to install a filter to prevent the escape of smell or smuts
-The injunction could be linked to the award of damages where a loss has occured
118
How could abatement be a remedy in private nuisance?
Seen in Lemmon v Webb where a claimant could chop down overhanging branches from his own land and return them to the neighbours land
119
What did shelter v city of London elective lighting co. set out about damages as a remedy in private nuisance?
Damages should only be awarded instead of an injunction when:
-The injury to the claimants rights was small, and
-The claimant can be compensated by a small amount of money
-It would be unfair on the defendant to grant an injunction
120
What did Coventry v Lawrence then later set out about damages as a remedy in private nuisance?
The Supreme Court gave guidance as to the future use of injunctions and the award of damages in private nuisance:
-An injunction could be the default order in a nuisance claim
-It is open to the defendant to argue that an award of damages would be a suitable alternative
-The shelfer test should not be applied rigidly
-An injunction will not automatically be granted, even if the shelfer test if satisfied
One of the judges, Lord assumption, suggested that the damages would usually be an appropriate remedy in nuisance. Following this guidance, the courts may award fewer injunctions in nuisance claims and be prepared to award damages instead
121
What was the legal principle in Sedleigh Denfield v O’Callaghan?
An occupier who knows of a danger and allows it to continue is liable in nuisance, even if they have not created the danger themseld
122
What was the legal principle in Leakey v National trust
A landowner could be liable in nuisance if he/she knows a slippage might happen and fails to prevent it
123
What was the legal principle in hunter v Canary Wharf?
The loss of a recreational facility is not sufficient interference to give rise to an action in nuisance. Only those with an interest in the land, not members of families, have a right to bring an action in nuisance
124
What was the legal principle in crown river cruises ltd v kimbolton fireworkds ltd (1996)
Even a short term activity can amount to a nuisance
125
What was the legal principle in Robinson v Kilvert?
If the claimant is unduly sensitive, a nuisance will not be found
126
What was the legal principle in Christie v Davey?
The defendants deliberate and malicious behaviour amounted to a nuisance
127
What was the legal principle in Miller v Jackson?
The use of a sports ground and it’s benefit to the community was balanced against the claimants use of their garden. The community use outweighed the private use
128
What was the legal principle in Sturges v Bridgman?
The defence of prescription failed as the nuisance began when the consulting room was built. The period before the building was erected did not count
129
What was the legal principle in Allen v Gulf oil refining?
The refinery had statutory authority to operate as this must have been parliaments intention
130
What was the legal principle in Coventry v Lawrence?
The Supreme Court decided the rule in Sturges v Bridgman about the character of neighbourhood still applies
131
What were the four elements present in Rylands v Fletcher that now must be proved for a successful claim under the tort?
1. A ‘thing’ is brought onto land and an accumulation (or storage) of it: the water
2. The ‘thing’ is likely to cause mischief (or damage) if it escapes: again, the water
3. The storage amounts to a non natural use of the land: the storage of water was non natural
4. The ‘thing’ does escape and causes foreseeable damage: water escaped and flooded the mines
132
Who are the potential claimants in a Rylands v Fletcher tort?
-A person who can take an action in this tort has to have an interest in the land affected, as shown in Hunter v Canary Wharf (1997)
-This means that they must own the land or rent it, or have some sort of property interest in it
-The House of Lords in Transco plc v Stockport Metropolitan Borough council (2003) reviewed the past case law and approved the line taken in Read v Lyons below that the tort, being a sub tort of nuisance required a proprietary interest in land by the claimant
133
Who are the potential defendants in a Rylands v Fletcher claim?
-According to viscount Simon’s test in areas v Lyon’s (1947), a defendant to an action in Rylands v Fletcher will either be the owner or occupier of land who satisfies the 4 ingredients if the tort, and all of the events must be present for liability
-It is assumed that the defendant must have some control over the land on which the material is stored
134
What are the requirements with the bringing onto the land in a claim in Rylands v Fletcher tort?
-If the ‘thing’ in question is already naturally present on the land, then there can be no liability
-So, in Giles v Walker (1890) there was no liability when weeds spread onto neighbouring land as they were growing naturally
-There cannot be liability for a thing that naturally accumulates (is stored) on the land.
-So, in Ellison v Ministry of Defence (1997), rainwater that accumulated naturally on an airfield at Greenham common did not lead to liability when it escaped and caused flooding on neighbouring land
135
What is the test of whether the ‘thing’ or substance is likely to do mischief it is escapes in Rylands v Fletcher?
-This is a test of foreseeability. It is not the escape that must be foreseeable-only that damage is foreseeable, if the ‘thing’ or substance brought onto the land does escape
136
What are examples of ‘things’ which courts have decided can do mischief?
-Gas and electricity
-Poisonous fumes
-A flag pole
-Tree branches
-An occupied chair from a chair-o-plane ride
137
What was concluded in Stannard, Ward LJ?
That in an appropriate case, damage caused by fire moving from an adjoining property might fall within a Rylands v Fletcher claim
138
Why is the appropriate case with damaged caused by fire falling under Rylands v Fletcher likely to be very rare?
1. It is the ‘thing’ which had been brought onto the land which must escape, not the fire which was started or increased by the ‘thing’
2. As set out in Transco v Stockport, there must be an extraordinary or unusual use of the land
3. While fire may be a dangerous thing, the occasions when fire is brought onto the land may be limited to cases where it has been deliberately or negligently started by the occupier
4. In any event, starting a fire on the occupiers own land may well be an ordinary use of the lard
139
What is a non natural use of land in a Rylands v Fletcher claim?
-The leading case of Transco plc v Stockport metropolitan borough council ruled that ‘non natural’ refers to some extraordinary or unusual use of land and a Rylands v Fletcher action can only take place where the defendant’s use of land is extraordinary and unusual
-In general, storage of things associated with the domestic use of land will not normally be classified as non natural, even though they may be potentially hazardous
140
What is a non natural use of land in a Rylands v Fletcher claim?
-The leading case of Transco plc v Stockport metropolitan borough council ruled that ‘non natural’ refers to some extraordinary or unusual use of land and a Rylands v Fletcher action can only take place where the defendant’s use of land is extraordinary and unusual
-In general, storage of things associated with the domestic use of land will not normally be classified as non natural, even though they may be potentially hazardous
141
What are examples that have been decided by courts as being a natural use of land?
-A fire in a grate which spread to the claimants premises
-Defective electric wiring that caused a fire which spread to the claimants premises
-A domestic water supply
142
What is the rule that the thing stored must escape and cause foreseeable damage in the Rylands v Fletcher tort?
-The stored item must escape from one property onto another property. Note the comments in Wyvern, above, where the court of appeal observed that to come within the tort, it was not the fire that should escape but the stored tyres
-This rule is not always strictly applied: in Hale v Jennings Bros (1938), both stalls operated on the same piece of land and neither stall holder owned the land. Yet liability was imposed
143
What are the defences in a Rylands v Fletcher tort?
1. Act of God- this defence may succeed where there are extreme weather conditions that ‘no human foresight can provide against’. It is only likely to succeed if there are unforeseeable weather conditions
2. Act of a stranger- if a stranger over whom the defendant has no control has been the cause of escape causing the damage, then the defendant may not be liable
3. Volenti non fit injura (consent)- there will be no liability where the claimant has consented to the thing that is accumulated by the defendant
4. Wrongful act of third party- this was shown in LMS international Ltd v Styrene packaging and Insulation Ltd (2005)
5. Statutory authority- if the terms of an act of parliament authorise the defendants action, this may amount to a defence. This was argued unsuccessfully in Charing cross electricity co. V Hydraulic power co. (1914)
6. Contributory negligence- where the claimant is partly responsible for the escape of the ‘thing’, the law reform (contributory negligence) Act 1945 applies and damages may be reduced according to the amount of the claimants fault
144
What are remedies for a claim in the Rylands v Fletcher tort?
A claimant must show damage to, or destruction of, their property to succeed in a claim for damages. The level of damages will be thr cost of repair or replacement of the property damaged or destroyed
145
What were the facts of Rylands v Fletcher (1868)?
The defendant made a reservoir as a water supply for his mill. Mineshafts were not blocked off, causing flooding to a mine
146
What was the legal principle in Rylands v Fletcher?
A claim could be made if material was brought onto land and stored, it was likely to cause mischief if it escapes, which amounted to a non natural use of the land
147
What was the legal principle in Transco plc v Stockport metropolitan borough council?
A claim in Rylands v Fletcher is a special form of nuisance when the use of land is extraordinary and unusual
148
What was the legal principle in Cambridge water co. V Eastern counties leather (1994).
Damage has to be reasonably foreseeable and not too remote from the escape
149
What is vicarious liability?
Vicarious liability is where one person (usually an employer) is responsible for the tort of another (usually the employee). This allowed for an injured claimant to sue the employee and the employer and discover which is between placed to pay the compensation
-This may be because one of the parties (usually the employer) is more likely to be in a better financial position and/or insured.
-Without vicarious liability, an injured claimant will be left without compensation
-The principle is usually justified because the employer employs, trains and supervises the employee, as well as benefiting from their work
150
According to the ‘salmond test’, employers are vicariously liable when?
-An employee commits an unintentional tort
-The person committing the tort is an employee, and
-The tort occurs in the course of the employment
151
What are the parties in vicarious liability?
-The tortfeasor- the person who commits the tort and causes the harm (usually the employee)
-The claimant- the victim who suffers harm
-The defendant- the person liable for the tort (usually the employer)
152
What was the old test of employment?
Was whether a person was providing:
-A contract of service- they would be an employee, or
-A contract for services- they would be an independent contractor
An employer can be vicariously liable for the actions of his employees, but not an independent contractor
153
What methods have the courts developed for testing employee status?
-The control test
-The integration or organisation test
-The economic reality or multiple test
154
What is the control test?
Lord Thankterton, in Short v J W Henderson Ltd (1946), identified some key features which would show that the employer had control over the employee, including:
-The power to select the employee
-The right to control the method of working
-The right to suspend and dismiss
-The payment of wages
Such a test is virtually impossible to apply accurately today. Nevertheless, there are circumstances in which a test of control is still useful, in this case of borrowed workers
155
What is the integration or organisation test?
Lord Denning in Stevenson, Jordan and Harrison Ltd v Mcdonald and Evans (1952) established this test. It provides that:
-A worker will be an employee if their work is fully integrated into the business
-If a persons work is only accessory to the business, that person is not an employee
According to this test:
-The master of a shop, a chauffeur or a newspaper staff reporter are all examples of employees
-A pilot bringing a ship into port, a taxi driver and a freelance writer are not employees
156
What is the economic reality or multiple test?
-In view of problems with the other 2 tests in vicarious liability, courts recognise that a single test of employment status is not satisfactory and may produce confusing results
-This test considers various factors which may indicate employment or self employment. It was established in Ready mixed concrete Ltd v minister of pensions and national insurance (1968)
157
How has the economic reality or multiple test been updated?
The test has been updated so that all factors In the relationship should be considered and weighed according to their significance. They might include:
-The ownership of any tools, plant or equipment- an employee is less likely to own the plant and equipment- an employee is less likely to own the plant and equipment used at work
-The method of payment- a self employed person is likely to take a payment for a whole job, where an employee will usually receive regular payments for the whole period of employment
-Whether tax, national insurance and pension contributions are deducted from an employee’s wages- a self employed person will have to submit self assessments and pay tax annually under schedule D
-Any role description- a person may describe himself as an employee or as self employed. This will usually, but not always be an accurate description
-Independence in doing a job- probably one of the most important tests of self employed status is the amount of independence and flexibility in being able to work from different sources, and when to do it
All these factors are useful in identifying the status of the worker, but none is an absolute test or is definitive on its own, and cases can still bring conflicting decisions
158
What are examples of cases bringing conflicting decisions whilst using the economic reality or multiple test?
-Carmichael v national power (1999): tour guides employed on a casual basis were not employees as there was no formal contractual arrangement between the parties
-Ferguson v Dawson (1976): there was a contract which stated that a building labourer was self employed, but the court decided he was employed, and the employers were required to protect him under safety laws o
159
What happens with liability for torts committed in the course of employment in vicarious liability?
-In order for the employer to be liable, the employee must commit the tort ‘in the course of the employment’
-The court has to decide whether or not an action is in the course of employment. It will be a question of fact in each case
160
What are the 2 lines of cases for liability for torts committed in the course of employment?
1. There is vicarious liability because the employee is acting in the course of employment
2. There is no vicarious liability because there is a reason the employee is not acting in the course of employment
161
What have been recent approaches to vicarious liability?
-The courts have in recent years developed an alternative approach to the conventional Salmond test for considering whether an employer is vicariously liable
-This has come about as a number of cases involving non traditional working relationships have come before the courts
-This approach started in the case of Lister v Hesley Hall.
162
What did the court ask In the case of lister v Hesley hall?
-Was the relationship between the employer and employee ‘akin to employment’?
And
-Was the commission of the alleged tort ‘closely connected’ to the employment?
The court will decide these questions in each case. Judgements can be inconsistent, but recently they appear to be weighted in favour of claimants who have been injured by an employee
163
What are the criteria which can make it fair, just and reasonable to find a relationship akin to employment and impose vicarious liability on the employer?
1. The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability
2. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer
3. The employees activity is likely to be part of the business activity of the employer
4. The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee; and
5. The employee will, to a greater or lesser degree, have been under the control of the employer
164
What is the question of close or sufficient connection in vicarious liability?
-The first question for the court is what functions or ‘field of activities’ have been given by the employer to the employee, or, in everyday language, what was the nature of his job?
-Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice
165
What is the rule with independent contractors in vicarious liability?
-If the tortfeasor is an independent contractor, the business alleged to be their employer will not be vicariously liable for their actions
-The victim will then have to rely on the financial worth of the contractor or Theo insurer in order to receive compensation
-The status of the tortfeasor was again considered in Morrisons supermarket v various claimants (2020)
166
What was the legal principle in Mersey Docks and harbour board v Coggins and Griffiths (1947)
If the worker and equipment are hired out, there is a presumption the original employer is liable. If only worker is hired out, the presumption is that hirer is liable
167
What was the legal principle in Hawley v Luminar Leisure (2006)?
Club employed bouncer so vicariously liable for his actions
168
What was the legal principle in Ready mixed concrete (south east) Ltd v minister of pensions and national insurance (1968)?
Three conditions required to show an employment relationship:
1. A relationship similar to employment
2. Which was established by a close connection
3. It was fair and just to impose liability on the employer
169
What was the legal principle Limpus v London general?
Employer liable to victim- the driver was doing his job= even against orders
170
What was the legal principle in Rose v plenty?
Dairy vicariously liable- it was benefitting from the boys work
171
What was the legal principle in Hilton v Thomas Burton (Rhodes) Ltd (1961)?
Employer’s not liable as the workers were on a ‘frolic’ of their own
172
What was the legal principle in Twine v Bean’s express (1946)?
Employers not liable- the driver was doing an unauthorised act and the firm was gaining no benefit
173
What was the legal principle in Beard v London general omnibus co.?
Employers not liable as conductor acted outside the course of his employment
174
What was the legal principle in lister v hesley hall?
Employers liable as there was a ‘close connection’ between his job and what he did
175
What was the legal principle in cox v ministry of justices (2016)?
Not necessary for employer to be carrying out commercial activity. It is enough to be carrying out commercial activity. It is enough to be carrying on activities in furtherance of its own interests to be liable
176
What was the legal principle in Mohamud v Morrisons supermarkets?
Employee acted in the field of his employment, making employers liable
177
What was the legal principle in armes v Nottingham county council?
Foster carers integral to employers ‘business activity’ to make them liable
178
What was the legal principle in Barclays Bank v various claimants (2020)?
Bank not liable for actions of independent contractor
179
What type of defence is contributory negligence.
-Contributory negligence is a part defence to claims of negligence and occupiers liability
-The defendant argues that the claimant partly caused the injuries suffered, and asks the court to reduce the blame and therefore the damages to be paid
180
How does the defence of contributory negligence?
-The law reform (contributory negligence) act 1945 provides that any damages awarded to the claimant can be reduced according to the extent or level to which they had contributed to their own harm
-The judgement will firstly set the full amount of the damages as if there was no contributory negligence
-The judge will then decide the percentage that the claimant is responsible for, and then reduce the amount of damages by this percentage. As it is a partial defence, it will only result in a reduction in the amount of damages
-The defence does not require the defendant show that the claimant owed him a duty of care, just that the claimant failed to take the appropriate care in the situation
-It will be necessary to prove causation- that the claimants act or omission helped to cause the injuries suffered, despite the defendants fault
181
When is the defence of contributory negligence used?
-The defence is commonly used in claims for injuries or damage suffered in road traffic accidents. Damages were reduced in these cases:
-O’Connell v Jackson (1972): the motorcyclist failed to wear a crash helmet- damages were reduced by 15%
-Froom v Butcher (1976): the passenger in a vehicle was not wearing a seatbelt- damages were reduced by 25%
-It is possible for there to be a 100% rede union in damages, as demonstrated in James v IMI (Kynoch) Ltd (1985)
182
What type of defence is Volenti non fit injuria?
-Consent, or Volenti, is a full defence to a claim of negligence or occupiers liability, when the defendant shows that the claimant voluntarily accepted a risk of harm or injury
-The phrase means that no injury is done to one who consents to the risk. If it is successful, the claimant will receive no damages
183
What does the defendant have to show that claimant done to succeed in the defence of Volenti?
1. Knew of the precise risk involved
2. Exercised free choice, and
3. Voluntarily accepted the risk
184
What is one restriction on the defence of Volenti?
-One restriction on the use of the defence is s149 of the road traffic act 1988, which provides that the defence cannot be used for road traffic accidents
-This is because of the existence of third party insurance, which will compensate an injured victim
185
How does the defence of Volenti operate?
-The test of Volenti is subjectuve rather than objective
-The defence will not apply merely because the claimant knows the the existence of the risk; they must fully understand the nature the actual risk
-The defence will not succeed where the claimant has no choice but to accept the risk: they must freely undertake the risk of harm
-Where a person has a duty to act and is then injured because of the defendant’s negligence, Volenti will not be available as a defence. The duty means that the claimant had no choice but to act. This is particularly relevant in rescue cases
186
When does the defence of Volenti apply?
-The defence only applies where the claimant does actually know of the risk of injury
-So it will not help the defendant to argue that the claimant ought to have been aware of the risk
187
What are compensatory damages?
-In a tort claim, the court can award a successful claimant compensation for the injuries they have suffered and/or damage to their property
-This award is known as damages
-The aim of the award of damages is to place the claimant in the same position as if the tort had not been committed, as far as money can do so
-This is possible where the claim is for damage to property as, for example, a car damages in an accident can be repaired
-However, if the claimant has suffered a serious disabling personal injury, this is not possible as no amount of money can make good such injuries
188
What is pecuniary loss?
-Pecuniary loss is a loss that can be easily calculated in money terms, such as the cost of:
-Hiring a car while the claimants own car is being repaired
-Damaged clothes or fares getting to and from hospital for treatment
189
What is non-pecuniary loss?
-Non pecuniary loss is loss that is not wholly money based and not strictly quantifiable. This can include, for example:
-Pain and suffering as a result of the accident
-Loss of amenity or a change in lifestyle, such as not being able to play a sport
190
What are special damages?
-These are amounts that can be calculated specifically up to the date of the trial or settlement. In other words, they are pecuniary loss
-This could include, vehicle repairs and the hire of a replacement or replacing damages clothes
-Any loss of earnings while recovering from the accident can also be claimed as special damages
-The cost of any necessary medical treatment such as physiotherapist if this is not otherwise available
191
What are general damages?
-These are non pecuniary losses and are looking forward from the trial or settlement date. They can include:
-An amount for pain and suffering
-Loss of amenity
-Future loss of earnings
-Future medical expenses, including adapting a house or car to be suitable for a severely injured person and paying for specialist care
192
How are the amounts for general damages decided?
-These amounts are speculative, and evidence will have to be obtained to support the claims this will include medical evidence of the effect of the accident on the victim and how long the suffering or injuries will take to heal, if at all
-For future loss of earnings and future medical expenses, there has to be an annual calculation of the loss, multiplied by the number of years of the loss
-For example, five years loss of earnings at £25,000 each year will lead to a total loss of earnings of £125,000
193
What are lump sums and structured settlements?
-When the court makes an award for pain and suffering and loss of amenity, they can only award a lump sum. This also has to be a once only award
-The claimant cannot come back to court to say that they have exhausted the damages received
-This can be unfair to a claimant whose condition in the future might become worse than originally diagnosed
-Also, where a large award is made for future medical expenses, there is the problem of inflation
-On the other hand, an award of a lump sum might be unfair to the defendant if the claimants condition improves considerably and there is no longer a need to pay for care
194
How does the damages act 1996 help in situations where a lump sum is awarded?
-This allows parties who settle a claim to agree that all or part of the damages can be paid as periodical payments: an amount per month or a year. This is arranged by the defendant (or probably the defendants insurer) who will purchase an annuity through a financial company
-Parties can agree that the payments may be made for life or for a specific period- for example, 10 years- and the amount can be reassessed at intervals to ensure that it’s value in real terms is maintained
-This type of settlement protects the claimant whose condition may become worse, and the defendant, if the claimants condition improves
-This arrangements will have to be agreed by the parties, as the courts have no power to order such arrangements
195
What is mitigation of loss?
-The claimant is entitled to be fully compensated for their loss but the amount of damages should be reasonable. This is called mitigation of loss.
-For example:
-While the claimants Ford car is being repaired, the cost of hiring a Bentley cannot be claimed as a replacement
-The cost of private health treatment cannot be claimed if the treatment is available on the NHS
196
What happens when calculating general damages for loss of earnings?
-When calculating general damages for loss of earnings, the claimant will be expected to mitigate the loss:
-If they can work part time or at a lower wage, they will expected to do so
-The amount of this wage will be deducted from the awar
197
What is an example of the four penalising the claimant for failing to mitigate their loss?
-An example of the court penalising the claimant for failing to mitigate his loss is Marcroft v Scruttons (1954), when the claimant was injured due to the defendant’s negligence
-He then refused to attend hospital and his injuries worsened
-The claimant was unable to claim his losses after his refusal to attend hospital due to his refusal to mitigate his loss
198
What happens with injunctions?
-Apart from damages, the other main remedy in tort is an injunction. This was explained in the tort of nuisance
-An injunction is a discretionary order for the defendant to stop doing something (continuing the nuisance) or to limit the hours of an activity, as seen in Coventry v Lawrence
-In the judgement, it was commented that if the loss or inconvenience suffered by the claimant is slight, then damages could be considered as a more suitable alternative
-If the person on whom the injunction is placed fails to follow the terms of the injunction, they will be in contempt of court and can be punished with a fine or imprisonment for a maximum of 2 years
