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Law > Tort > Flashcards

Tort Flashcards

1
Q

Step 1 of a claim in tort?

A

Identify possible claimants and defendants

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2
Q

Step 2 of a claim in tort?

A

Identify what has happened to the claimant (eg personal injury)

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3
Q

Step 3 of a claim in tort?

A

Identify which tort is relevant

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4
Q

What is the definition of negligence

A

Negligence is ‘a breach of legal duty of care owed to the claimant that results in harm to the claimant, undesired by the defendant’

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5
Q

What is an established duty of care situation?

A

One that has previously been laid out in case law

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6
Q

What is the authority for road uses, pedestrians, cyclists, passengers etc? (and explanation of case)

A

Nettleship v Weston - Learner driver

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7
Q

What is the authority for footballers?

A

Condon v Basi

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8
Q

What is the authority for a contractual duty between contractor and person? (and explanation of case)

A

AC Billings v Riden - doing work on house, visitor injured

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9
Q

What is the authority for the creator of danger to the reasonably foreseeable rescuer?

A

Baker TE Hopkins & Son Ltd

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10
Q

What other established common duty situations are there? (4)

A

Doctor to patient
Employer to employee
Manufacturer to consumer
Teacher to pupil

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11
Q

If not an established duty situation then what must you use?

A

Novel duty situation

Must use the Caparo test

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12
Q

What are the three points set out in the Caparo test?

A
  1. Reasonable foresight of harm to the claimant
  2. Sufficient proximity of relationship between claimant and defendant
  3. That it is fair just and reasonable to impose a duty
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13
Q

What authority is there for reasonable foresight of harm?

A

Bourhill v Young - Motorcyclist accident, claimant walks past and sees blood, baby is a stillborn. This is not foreseeable.

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14
Q

What happened in Swinney v Chief Constable of Northumbria?

A

(Assumption of responsibility) Police, by accepting sensitive information, had ASSUMED a DUTY OF CARE on the claimants

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15
Q

What happened in Barrett v Ministry of Defence?

A

(Assumption of responsibility)

Drunk naval pilot taken care of by fellow officers, choked on vomit and died. They had ASSUMED a DUTY OF CARE

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16
Q

What happened in Home Office v Dorset Yacht?

A

Identifiable potential victim
Borstal boys escaped on boat and crashed in to claimants boat. Held that borstal officers had a SUFFICIENT PROXIMITY as the boys had a history of escape and only way to escape was via boat.

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17
Q

What happened in Osman v Ferguson?

A

Identifiable potential victim

Police were aware teacher stalking pupil and family, when pupil and dad shot and killed they had SUFFICIENT PROXIMITY

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18
Q

What happened in Hill v Chief Constable of West Yorkshire?

A

Identifiable potential victim
Yorkshire ripper’s last victim tried to claim duty of care. However INSUFFICIENT PROXIMITY between specific woman and police

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19
Q

What happened in Hertfordshire Police v Van Colle?

A

Identifiable potential victim

Brougham did not have a history of violence, not sufficient to suggest life endangered. Therefore INSUFFICIENT PROXIMITY

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20
Q

What happened in Kirkham v Chief Constable of Greater Manchester Police?

A

Police had assumed responsibility for detainee and knew of his suicidal tendencies - therefore greater proximity

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21
Q

What happened in Robinson v Chief Constable of West Yorkshire Police?

A

Police fell on lady injuring her. This established an exception to the principle that police cannot be sued in negligence. ➡️ when there is a positive duty to act liability imposed (compared to an omission)

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22
Q

What authority is there for fair, just and reasonable leg of the Caparo test?

A

Marc Rich v Bishop Rock Marine Co Ltd

Non-profit organisation. Not fair just and reasonable to make them pay out lots of money.

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23
Q

What happened in Caparo?

A

Caparo Industries bought shares in a company who had supposedly made £1.3m profit. In fact they had made a loss of £400,000.

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24
Q

What will the courts take in to account regarding fair, just and reasonable? (5)

A
  • Floodgates
  • Public benefit
  • Upholding the law
  • Resources
  • Deterrence
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25
Q

What is the general rule for an omission?

A

No liability for omissions to act

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26
Q

What is the authority for omissions to act?

A

Stovin v Wise - lack of work on road that had caused accidents

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27
Q

What exceptions are there for an omission to act?

A

If a person has some sort of power or control or a special relationship

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28
Q

How does Home Office v Dorset Yacht relate to omissions?

A

Damage caused was due to an omission, however officers had control over borstal boys, so liable

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29
Q

What happened in Smith v Littlewoods?

A

An omission to act over vandals breaking in and damaging neighbouring property. Duty on occupier would be too wide.

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30
Q

What happened in Carmathenshire County Council v Lewis?

A

Child from school ran out on to road, lorry driver swerved and was killed.
Omission to act by the teacher was still liable.

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31
Q

What if no duty is owed but someone acts anyway? (authority)

A

East Suffolk Rivers Catchment Board

If decide to intervene, not liable in negligence even if you do act carelessly

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32
Q

Where would acting with no duty make you liable?

A

If you negligently made matters worse

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33
Q

What is the test for a breach of duty?

A

The standard of a reasonable person

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34
Q

What is the authority for the test of breach of duty?

A

Blyth v Birmingham Waterworks: Flooding from hydrants, held that water company had done everything a reasonable water company would do.

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35
Q

What factors should you consider for breach of duty? (6)

A
  1. How foreseeable was the injury
  2. How serious was the injury likely to be
  3. Purpose of the defendants action
  4. Cost and practicability to take precuations
  5. Common practice
  6. Current state of knowledge
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36
Q

Authority for how foreseeable the injury was (2)

A

Bolton v Stone: very unlikely that cricket ball would ever make it to garden - therefore not foreseeable and no breach
Miller v Jackson: Houses on surrounding fields cricket balls hit all the time. Foreseeable so BREACH

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37
Q

Authority for seriousness of injury?

A

Paris v Stepney: claimant was blind in one eye, so if injured eye would be completely blind. Goggles should have been provided - therefore BREACH

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38
Q

Authority for purpose of defendant’s action

A

Watt v Hertforshire: Firemen had to hold jack on truck, fell on claimants leg. As matter of life and death NO BREACH

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39
Q

Authority for cost and practicability to take precautions against risk

A

Latimer v AEC: Defendant had slippy floor, had taken precautions. Did not need to shut whole factory down so NO BREACH

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40
Q

Authority for common practice

A

Bolam v Frien Hospital: gave drugs which caused death, supported by medical body so NO BREACH

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41
Q

Authority for current state of knowledge

A

Roe v Ministry of Health: anaesthetic had become infected but there was no knowledge that it would become infected in this particular way. NO BREACH

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42
Q

What is the test for a skilled defendant on breach of duty?

A

Judged off the degree of skill or competence expected of a person with that skill

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43
Q

Authority for skilled defendant?

A

Bolam: doctors must meet the standard of their profession.

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44
Q

Bolitho v City and Hackney Health Authority

A

Beeper didn’t go off, child died. Even if had been there would not have intubated baby. Held that method was based on logic and was defensible.

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45
Q

What is the test for a un-skilled defendant on breach of duty?

A

It is an objective and impersonal test, therefore no allowance is made for experience

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46
Q

Authority for underskilled defendant? (2)

A

Nettleship v Weston: learner driver tested to standard of reasonable driver
Wilshire v Essex Arrea Health Authority: Junior doctor judged to standards of competent doctor

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47
Q

However authority for amateur defendant?

A

Wells v Cooper: amateur carpenter is to be judged to standard of reasonable amateur carpenter

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48
Q

Test for children and breach of duty?

A

Child expected to show standard of care of reasonable child same age.

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49
Q

Authority for children and breach of duty

A

Mullins v Richards:

Two 15 year olds playing with ruler, snapped and blinded girl,

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50
Q

Who must prove breach of duty?

A

Burden of proof is on the claimant

On the balance of probabilities (50%)

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51
Q

What can you use to prove breach?

A

Witnesses
Expert witnesses
Civil Evidence Act (if guilty in criminal court then assumption to have committed offence)

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52
Q

What is res ipsa loquitur? and three conditions?

A

The thing speaks for itself

  1. Thing causing damage must be under control of defendant
  2. Accident must be such as would not normally happen without negligence
  3. The cause of accident is unknown to the claimant
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53
Q

Authority for res ipsa loquitur

A

Scott v London and St Katherine Docks

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54
Q

What are the three limbs of causation?

A

Factual causation
Intervenings acts
Remoteness of damage

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55
Q

What is the test for factual causation?

A

The but for test

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56
Q

Authority for the but for test?

A

Barnett v Chelsea and Kensington: patient arsenic poisoning, sent home but nothing could have done anyway

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57
Q

What can be used if the but for test does not work?

A

Material contribution

Material increase in risk

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58
Q

What is authority for material contribution? (2)

A

Bonnington Castings v Wardlaw: defendant’s breach of duty materially contributed to the disease which the claimant suffered

McGhee v National Coal Board: extended the material contribution approach to cover creation of a material increase in the risk of injury

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59
Q

How can you distinguish Wilsher and Bonnington?

A

Bonnington, claimant able to prove material contribution, no matter how small
Wilsher, all or nothing and 5 different causes so not a material contribution

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60
Q

What occurs when there are divisible injuries?

A

Court will apportion damages appropriately

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61
Q

Authority for divisible injuries?

A

Holtby v Brigham and Cowan: asbestosis during work, claimed against all employers and each paid damages for how long he’d worked there

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62
Q

What is the Civil Liability (Contribution) Act 1978?

A

The court can apportion damage between each defendant, depending on each person’s share of the damage

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63
Q

What occurs with indivisible injuries?

A

Claimant can rely on material increase in risk. Therefore each employer can be liable for whole of the claimants harm.

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64
Q

Authority for indivisible injuries?

A

Fairchild v Glenhaven Funeral Services: died of mesothelioma had been exposed to many different sources so unaware of which had caused. Able to sue any employer for full harm

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65
Q

What can come under indivisible injuries?

A

Only scientific uncertainty

Therefore at the moment only mesothelioma

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66
Q

What is the Compensation Act 2006 s3?

A

Defendants found liable for causing mesothelioma are each liable for the whole of the claimants harm

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67
Q

What two parts must you consider with intervening acts?

A

Actions of claimant

Actions of third party

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68
Q

What are authorities for actions of third party? (intervening act)

A

Knightly v Jones: police sent man cycling up wrong side of the road - this was an INTERVENING ACT as not foreseeable. DID BREAK CHAIN

Rouse v Squires: driver who crashed and blocked road was liable for other deaths involving crashes on the road relating to this incident. DID NOT BREAK CHAIN

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69
Q

What are authorities for actions of a claimant? (intervening act)

A

McKew v Holland: injured leg at work, while injured walked down steps and injured more. This was an INTERVENING ACT and did BREAK CHAIN

Wieland v Cyril Lord Carpets: Claimant injured and wearing neck brace. Fell down steps because of this. This was NOT an INTERVENING ACT and DID NOT BREAK THE CHAIN

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70
Q

What is the definition of remoteness?

A

Damage is too remote if it was not reasonably foreseeable as a consequence of D’s action

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71
Q

Authority for remoteness

A

The Wagon Mound No 1: Spilt oil in water, set whole place on fire. TOO REMOTE

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72
Q

What is the egg shell skull rule?

A

Take your victim as you find them

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73
Q

What is the authority for egg shell skull?

A

Robinson v Post Office - got tetanus after jab in hospital from slipping and injuring. Foreseeable that would end up in hospital

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74
Q

What is the similar in type rule? and authority

A

Injury must be reasonably foreseeable, but it is not necessary to foresee the precise way in which the injury was caused [Hughes v Lord Advocate]

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75
Q

What happened in Tremain v Pike?

A

Rats, got Weil’s disease. While foreseeable they presented some harm Weil’s disease was too remote.

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76
Q

Who must prove a defence?

A

Defendant on the balance of probabilities

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77
Q

What is volenti non fit injuria?

A

Voluntary assumption of risk

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78
Q

What type of defence is volenti?

A

Complete defence

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79
Q

What must a defendant establish for volenti?

A
  1. That the claimant had full knowledge of the nature and extent of the risk
  2. That the claimant willingly consented to accept the risk of being injured
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80
Q

Opposing authority for volenti? (drunk)

A

Dann v Hamilton: passenger with a drunk diver, however had not been so obvious
Morris v Murray: drunk pilot was so extreme and glaring that volenti successful

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81
Q

Volenti in employment?

A

Very unusual as no freedom of choice

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82
Q

Authority for volenti in employment?

A

Smith v Baker: claimant aware of swinging rocks to be a danger, but it was his job so could not stop

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83
Q

Volenti for rescue? (3 conditions)

A

Not successful if

  1. Their conduct was reasonable
  2. They were acting under legal duty
  3. They were acting to reduce danger
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84
Q

What type of defence is contributory negligence?

A

Partial defence

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85
Q

What is the test for contributory negligence?

A

Has the claimant failed to take reasonable care for his own safety?

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86
Q

What two elements are part of contributory negligence?

A
  • Carelessness on the claimant’s part

- That carelessness contributed to the claimant’s damage

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87
Q

What is the Law Reform (Contributory Negligence) Act 1945

A

Court will calculate full amount of damages and make an appropriate reduction

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88
Q

Authority of contributory negligence?

A

Reeves v Metropolitan Police Comissioner: deceased hanged himself while in police custody 50% police 50% deceased

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89
Q

.

A

.

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90
Q

What is the dilemma rule?

A

The defendant’s negligence may put the claimant in a situation of imminent danger - therefore actions may be reasonable

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91
Q

What is the defence of illegality?

A

The injury needs to be closely linked to illegal acts of the claimant

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92
Q

Examples of illegality?

A

Pitts v Hunt: appropriate standard of care of getaway driver

Ashton v Turner: both involved in burglary

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93
Q

What is a contribution between tortfeasors?

A

Where two people are liable for one tort

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94
Q

What act helps contribution between tortfeasors?

A

Civil Liability Contribution Act 1978

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95
Q

What is the general rule in limited duty situations?

A

There is no duty of care owed, so loss in not recoverable

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96
Q

What happened in Spartan Steel v Martin?

A

Severed power supply resulting in power loss for factory. The damage and consequential loss was recoverable, but the loss of profit on four other melts was pure economic loss and not reocoverable

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97
Q

What is the history on defective property?

A

The replacement of a faulty product is pure economic loss
Anns case: won on defective house
Murphy v Brentwood: reversed Anns, damages were for replacement or repair of a defective product

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98
Q

What exception is there for pure economic loss caused by negligent statements

A

Special relationships

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99
Q

What is the authority for these special relationships?

A

Hedley Byrne v Heller & Partners

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100
Q

What are the two elements to a special relationship under Hedley Byrne?

A
  1. Assumption of responsibility by defendant

2. Reasonable reliance by the claimant

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101
Q

What happened after Hedley?

A

Caparo added, so there were 4 criteria

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102
Q

What is the general rule in a social situation for negligent misstatements?

A

No duty of care will be owed in respect of the advice given in a social situation because there has been no assumption of responsibility

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103
Q

Where has there been extension of the special relationship?

A

To third parties relying on negligent statements

Spring v Guardian Assurance: negligent reference

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104
Q

Can liability be excluded for pure economic loss?

A

Yes

Exclusion clause

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105
Q

What two requirements are there for exclusion clause?

A
  1. Reasonable steps must have been taken to bring to attention
  2. Wording of notice must cover
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106
Q

What two Acts can limit the ability to exclude liability?

A

UCTA 1977

CRA 2015

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107
Q

What makes up the reasonableness test?

A

Smith v Eric S Bush

  • Equal bargaining power
  • Practical to obtain from another source
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108
Q

What is the defining feature of pure psychiatric harm?

A

Caused without any physical impact or injury to the claimant

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109
Q

What types of victim are there?

A

Primary

Secondary

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110
Q

What is a primary victim?

A

The person who is actually involved in the incident and suffers pure psychiatric harm

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111
Q

What is the test for a primary victim?

A
  1. In the area of danger

2. Reasonably believed they were in danger

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112
Q

What is a secondary victim?

A

Someone who is not involved in the incident, but still suffers pure psychiatric harm

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113
Q

What happened in Alcock v Chief Constable of South Yorkshire Police [1991] ?

A

Hillsborough. Negligence of police, stadium crush.

Established test for secondary victims

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114
Q

What are the 4 limbs of the test for secondary victims? [Alcock test]

A
  1. Foreseeability of harm
  2. Proximity of relationship
  3. Proximity in time and space
  4. Proximity of perception
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115
Q

What are the conditions of the foreseeability of harm?

A

A person of normal fortitude would also suffer psychiatric illness

116
Q

What are the conditions for proximity of relationship? (secondary victim)

A

Close relationship of love and affection with person endangered

117
Q

What are presumed close relationships?

A

Parent/child, husband/wife

Can be rebutted

118
Q

What are the conditions for in proximity in time and space?

A

Need not be present, but must at least be in aftermath

119
Q

What are the conditions for proximity of perception

A

Must hear of see the accident, or its immediate aftermath with own senses (not on TV)

120
Q

What is the situation with rescuers and pure psychiatric harm?

A

Rescuers hold same status as anyone else

121
Q

What is the likely outcome for rescuers?

A

If primary victim then will likely pass.

Unlikely pass secondary victim as unlikely to have a close relationship of love and affection

122
Q

What happens with fortitude vs egg shell skull?

A

First must take the fortitude test. If passed, then considered for egg shell skull in causation - will be able to recover for damages that are a greater extent than could reasonably have been foreseen

123
Q

What are nominal damages?

A

When tort is actionable per se (no damage) - token money eg £10

124
Q

What are compensatory damages?

A

When ACTUAL harm has been suffered

125
Q

What is the aim of damages in tort?

A

To put the claimant in the same position he would have been if the tort had not been committed, so far as possible

126
Q

What are special damages?

A

Losses capable of being calculated at the time and before trial (calculation)

127
Q

What are general damages?

A

Losses not capable of being precisely calculated - left to court to decide

128
Q

What is mitigating loss?

A

Must take reasonable steps to keep losses to a minimum

129
Q

What is one action rule?

A

Can only bring claim once

130
Q

What are pecuniary losses?

A

Capable of mathematical calculation in money terms

131
Q

What are non-pecuniary losses?

A

Not capable of being calculated eg pain and suffering, loss of amenity

132
Q

Can medical expenses be recovered?

A

Yes - anything pre-trial and everything that may happen post trial

133
Q

What about private medical treatment?

A

Private treatment is fine under Law Reform (Personal Injuries) Act

134
Q

Loss of earnings pre-trial?

A

Net earnings for that period includes perks, bonuses etc

135
Q

How to calculate loss of earnings post-trial?

A

Multiplicand x Multiplier = award for future loss

136
Q

What is the multiplicand?

A

What the claimant was earning annually
Promotions taken in to account
Deduct tax etc

137
Q

What is the multiplier?

A

How long the claimant will be earnings this money for
If can never work again = retirement age
If can return = until they can be expected to return

138
Q

What is the Damages Act 1996?

A

Claimants should be treated as risk averse investors
-0.25% rate
Ogden tables

139
Q

What happens if life expectancy reduced?

authority and percentages

A

Can claim damages for lost years [Pickett v British Rail Engineering]
If married and with dependants then 25%
If no dependants then 33%

140
Q

What will courts consider if child is injured and can’t work?

A

Parents incomes
National average of earnings
Child has shown particular potential in area of employment

141
Q

What about services provided to the claimant?

A

Can recover for cost of help with housework, cleaning shopping etc

142
Q

What are the costs of a carer limited to?

A

Reasonable commercial rate of such services

143
Q

What is the Smith v Manchester Corporation Award?

A
  • If claimant returns to job but is at risk of losing it, can be awarded this
144
Q

What other expenses can be claimed?

A

Any other property damaged in accidents

  • Jewellery
  • Watch
  • Clothes
145
Q

How to claim for pain and suffering? (authority)

A

All past present and future pain
Wise v Kaye: Subjective test - must be aware to claim for pain.
If unconscious then no claim

146
Q

How to claim for loss of amenity? (authority)

A

Loss of enjoyments of life

West v Shephard: Objective test - can recover even if unconscious

147
Q

What two pieces of statute are used for damages on death?

A

The Law Reform (Miscellaneous Provisions) Act 1934

The Fatal Accidents Act 1976

148
Q

When can a claim be used under the The Law Reform (Miscellaneous Provisions) Act 1934?

A

A claim on behalf of the estate for the period BETWEEN tort and death

149
Q

What can be claimed for under the Law Reform (Miscellaneous Provisions) Act 1934?

A 
Pain and suffering
Loss of earnings
Nursing care
Property damage
Travel expenses
Funeral expenses (if paid for by the estate)
150
Q

What cannot be claimed under the Law Reform (Miscellaneous Provisions) Act 1934?

A

Pain and suffering if in coma or unconscious

HOWEVER still can get loss of amenity

151
Q

When can a claim under the Fatal Accidents Act 1976 be used?

A

After death, on behalf of the dependants

152
Q

What must someone satisfy to claim as a defendant for Fatal Accidents Act 1976?

A
  1. Must fall within the class listed in the act (partners, parents, children)
  2. Must have been financially dependent on the deceased
153
Q

Can pecuniary and non-pecuniary losses be claimed for loss of dependency?

A

Only pecuniary damages

154
Q

How do you work out the multiplicand for loss of dependency?

A

Deceased net earnings
MINUS
Living expenses (25% if children, 33% if not)
Can also include perks of job (company car, private healthcare etc)

155
Q

How do you work out the multiplier for loss of dependency?

A

The period for which the dependency would have continued
= for a spouse, until retirement age
= for a child, until 18 or ceases full time education

156
Q

When would you make deductions for contributory negligence?

A

At the end

157
Q

Who can claim for damages of bereavement?

A

Wife, husband civil partner, parent (who was never married)

Child CANNOT

158
Q

What is the fixed sum for bereavement?

A

£15,120

159
Q

Funeral expenses on Fatal Accidents Act?

A

Yes if paid for by dependents

160
Q

What steps were established in Wilsons v Clyde Coal?

A

Employers have a common law duty

  1. Competent staff
  2. Adequate material
  3. A proper system of work and supervision
161
Q

What was added by Latimer v AEC?

A
  1. To take reasonable steps to provide a safe place at work
162
Q

What is special about an employers duty?

A

It is non-delegable because the relationship between an employer and employee is a close personal relationship, based on mutual trust and confidence

163
Q

Example of duty to take reasonable care of staff

A

Hudson v Ridge Manufacturing Co: practical jokes - employer knew so liable

164
Q

What two parts of providing adequate plant and equipment are there?

A
  1. Employer does provide plant but it is INADEQUATE

2. Employer doesn’t provide plant AT ALL

165
Q

What about defective equipment?

A

If defective, employee can sue employer.

Employer can then sue manufacturer

166
Q

What need to do for adequate staff?

A
  • Selection of staff
  • Training of staff
  • Supervision
167
Q

What is inadequate equipment?

A
  • Wear and tear
  • Lack of servicing
  • Lack of safety device
168
Q

What is included in a safe system to work?

A
  • Physical lay out of premises
  • Sequence in which work is carried out
  • Provision of training
169
Q

How was stress at work established (case law)?

A

Walker v Northumberland County Council

170
Q

What guidelines are there for stress at work (and authority)?

A

Hatton v Sunderland

  1. The nature of extent of the workload
  2. Signs from the employee himself about stress
171
Q

Why is stress hard for an employee to claim for?

A

If need to make it known to employer, this could be to the detriment of the employee

172
Q

What similarities are there in a duty to provide a safe workplace? + what difference?

A

Overlap with Occupiers’ Liability

However more onerous as the duty is non-delegable

173
Q

What was established in General Cleaning Contractors v Christmas?

A

Duty to provide a safe workplace, even if not their premises (window cleaner at different premises hurt)

174
Q

How will volenti be used for employers’ liability? (authority)

A

Very rarely successful as employee will not freely consent to doing their job [Smith v Baker]

175
Q

Can contributory negligence be used for employers’ liability?

A

Yes

176
Q

What allowance will courts make for contributory negligence used for employers’ liability?

A

If are working in noisy conditions doing repetitive work

More likely against an office worker than a manual labourer

177
Q

What are the three essential elements of vicarious liability?

A
  1. Workers must be an employee or in a relationship akin to employment
  2. Employee must have committed a tort
  3. The employee’s tort must have been committed in the course of employment
178
Q

What authority established how to identify an employee?

A

Ready Mix Concrete

179
Q

What three conditions are there from Ready Mix Concrete?

A
  1. Employees receive wage or renumeration in return for skill or work
  2. Employees agree that they will be subject to another’s control
  3. Other provisions of the contract are consistent with it being a contract
180
Q

What might show someone is not an employee?

A
  • Workers providing own tools
  • Hiring their own helpers
  • Arrangements where they are at financial risk and not their employers
181
Q

What is the difference between an employee and a contractor?

A

Employee performs service for just one person vs lots

Independent contractor is self-employed whereas employee receives wage

182
Q

What happened in Poland v Parr?

A

Man protecting employer’s property with force had implied permission to commit tort from employer - WITHIN COURSE OF EMPLOYMENT

183
Q

What happened in Century Insurance v NI Road Transport Board?

A

Man lights cigarette while driving petrol lorries, causing explosion - WITHIN COURSE OF EMPLOYMENT

184
Q

What are the distinctions about acts expressly prohibited by employer?

A
  • If employees do something OUTSIDE THE SCOPE then NOT vicariously liable
  • If performs task IN A MANNER that was prohibited, then VICARIOUSLY LIABLE
185
Q

What happened in Twine v Beans Express?

A

Delivery driver picks up hitch-hikers, despite expressly prohibited. Outside of scope so not vicariously liable

186
Q

What happened in Rose v Plenty?

A

Milkman picked up boys to help deliver milk, crashed and injured boy. Was in manner to help assist job, so vicariously liable

187
Q

What happens if an intentional tort?

A

Unlikely to be vicariously liable
HOWEVER
Lister: sufficient connection between work employed to do and acts in question then liable

188
Q

What is a frolic case?

A

When an employee is acting outside the course of his employment then he is said to be ‘on a frolic of his own’

189
Q

What issues should be considered in a frolic case?

A
  1. Geographical divergence

2. Departure from task set

190
Q

What are two frolic cases?

A

Hilton v Thomas Burton: not on a frolic if doing anything he was employed to do
Harvey v RG O’Dell Ltd: stopping for lunch is reasonably incidental to ones work

191
Q

What is employer’s indemnity?

A

An employer can claim full loss from an employee that has committed the tort - they are jointly liable

192
Q

What are the two statutes that govern occupiers’ liability?

A

Occupiers’ Liability Act 1957

Occupiers’ Liability Act 1984

193
Q

When will occupiers’ liability apply?

A

When claimant = visitor

Defendant = occupier

194
Q

What is defined as an occupier? (authority)

A

Anyone who has ‘occupational control of the premises’ [Wheat v Lacon]

195
Q

What is defined as a visitor?

A

Someone who enters another’s property with a person’s express or implied permission

196
Q

What is the definition of a premises?

A

Very wide definition

197
Q

What is a key point about safety?

A

It is the visitors safety rather than the safety of the premises

198
Q

What is the difference for skilled visitors?

A

An occupier can expect such a skilled visitor will guard against any special risk

199
Q

Authority for skilled visitors?

A

Roles v Nathan: chimney sweeps warned of risks and should’ve known better - therefore occupier not liable

200
Q

What is the difference for child visitors?

A

Require a higher degree of care

201
Q

What the case with allurement?

A

If the danger is an allurement, should do even more to safeguard child.

202
Q

Authority for allurement

A

Glasgow Corporation v Taylor: child ate poisonous berries in botanic gardens and died - LIABLE

203
Q

What about very young children? [authority]

A

Employer can reasonably expect them to be accompanied by an adult [Phipps v Rochester Corporation]

204
Q

Can a warning prevent breach of duty?

A

Yes

Must be adequate

205
Q

What needs to be considered for adequacy of warning?

A 
Was the warning specific enough? 
Was the danger named?
Was the danger obvious or hidden?
Who was the visitor?
What about foreign visitors?
206
Q

What’s the difference between exclusion clause and warning?

A

Warning will prevent there being a breach established at all

Exclusion clause acts as a defence

207
Q

Will an occupier be liable for the actions of an independent contractor?

A

IT DEPENDS
If no specialist knowledge required then YES
If specialist knowledge then NO

208
Q

What are two authorities for independent contractors and occupiers’ liability?

A

Woodward v Hastings - cleaner brushes snow away from step, doesn’t remove ice. Child slips. LIABLE AS NO SPECIALIST KNOWLEDGE
Haseldine v Daw - hydraulic lift broken, claimant injured - NOT LIABLE AS SPECIALIST KNOWLEDGE

209
Q

Volenti and occupiers liability?

A

Claimant must know precise risk and show by conduct willingly accepts this risk

210
Q

Authority for volenti and occupiers liability?

A

Ratcliff v McConnell: boys jumped in to shallow pool and broke neck. Had awareness and accepted risk

211
Q

Can occupiers exclude liability?

A

Yes
Must take steps to bring to claimants attention
Wording of notice must cover the loss suffered
Subject to reasonableness test

212
Q

Can you use contributory negligence?

A

Yes if claimant fails to take care of his own safety

213
Q

What are key parts of UCTA that are included for occupiers’ liability?

A
  1. Private occupiers are not subject to any provisions - so can exclude all liability
  2. Any attempt to exclude for personal injury or death is not valid
  3. Must satisfy reasonableness test
214
Q

What does each act for occupiers’ liability govern?

A

1957 - visitors

1984 - trespassers

215
Q

What is a trespasser defined as?

A

One who goes upon land without invitation of any sort and whose presence is unknown to the proprietor

216
Q

How is a duty of care established to a trespasser?

A
  1. If the defendant knew of the danger or had reasonable grounds that it existed
  2. The defendant knew or had reasonable grounds to believe that non-visitors were in the vicinity
217
Q

Authority for no duty of care to trespasser?

A

Donoghue v Folkstone: Winter months, diving slipped and sustained injury. Folkestone had no idea he would be swimming so NO DUTY

218
Q

Warnings for 1984 Act?

A

Reasonable steps to give warnings

Where inadequate, obstacles can be used eg fences etc

219
Q

What about exemption clauses for 1984 act?

A

Act is silent

Believed that you cannot exclude liability

220
Q

What three potential causes of action are there in product liability?

A
  1. Negligence
  2. Consumer Protection Act 1987
  3. Contract
221
Q

What are the rules set out by X authority to show duty of care for product liability?

A

Donoghue and Stevens (narrow rule) Each must be present

  1. Manufacturer
  2. Product (includes packaging)
  3. Consumer
  4. No reasonable possibility of intermediate examination between leaving manufacturer and reaching consumer
222
Q

Who can be a manufacturer? (product liability)

A

Any person who has worked on a product before it reaches the consumer

  • Repairers of product
  • Installers of product
  • Suppliers of product
223
Q

What can be a product? (product liability)

A

Any item you can imagine being capable of damage

224
Q

Who is a consumer? (product liability)

A

Not only the consumer of the article

Anyone whom could reasonably be injured by the product

225
Q

What is intermediate examination?

A

Can escape liability if product had to be tested before

However if a hidden defect then NOT exonerated

226
Q

What is the authority for intermediate examination?

A

Kubach v Hollands: manufacturer warned retailer that chemicals should be tested before use. Failed to tell school and schoolgirl got it in her eye

227
Q

What amounts to a breach of duty for product liability?

A

Have fallen below the standard of care of the reasonable manufacturer

228
Q

When has there been an inference of breach by the manufacturer?

A

Grant v Australian Knitting Mills: suffered dermatitis from underwear. Could not find a problem with the manufacturing process but held that there must have been a mistake somewhere for dermatitis to be present

229
Q

How can a manufacturer comply with duty?

A

If adequately warns of danger

230
Q

Who can sue under the Consumer Protection Act 1987?

A

Anyone that has

  1. Suffered damage
  2. Caused by
  3. A defect
  4. In a product
231
Q

What damage is included under the CPA 1987?

A
  • Death or personal injury
  • Personal non-business property over £275 (if it is predominantly personal but sometimes used for business this is fine)
232
Q

What damage is not included under the CPA 1987?

A

Business property

The product itself (pure economic loss)

233
Q

What will not be included in the damages of a negligence claim?

A

The product itself (pure economic loss)

234
Q

What may prevent a causation link in a negligence claim? (authority)

A

Lapse of time [Evans v Triplex Safety Glass]

235
Q

What is different about causation in a claim under the CPA 1987?

A

NOT Wagon Mound

Use Re Polemis —> direct consequences of the defect

236
Q

What happened Re Polemis?

A

Plank of wood created a spark which ignited a big fire. Strict liability which is a different remoteness test

237
Q

What is a defect under the CPA?

A

It is unsafe NOT dangerous.

A dangerous item eg a knife, a customer has an expectation to understand this

238
Q

What should be considered when deciding if a product is unsafe? (4)

A
  • Warnings
  • Instructions for use
  • Purpose of what the product was marketed for
  • Manner of marketing and product get up
239
Q

What is different in the CPA from negligence?

A

It is a strict liability statute.

Therefore the fact a defect in a product is unavoidable, is not a defence

240
Q

What happened in A v National Blood Authority?

A

Claimants were patients infected by hepatitis C in a blood transfusion. At the time not known this could happen but still held liable

241
Q

Who are possible defendants under the CPA?

A
  1. Producer
  2. Forgetful supplier (supplier who forgets to identify the producer)
  3. Own brander (who puts their own mark on it eg Tesco or Amazon)
  4. Importer to the EU
242
Q

What is a defence on the CPA about legal?

A

It was attributable to compliance with legal requirements

243
Q

Defence on CPA about thieves?

A

The defendant did not supply the product to another eg if stolen

244
Q

Defence about friends?

A

If not sold in the course of business

245
Q

What is the controversial defence?

A 
Developmental risk (state of the art)
The state of knowledge around the world was such that the producer could not be expected to know the defect
246
Q

What did Commission v UK confirm?

A

It was to be set against the highest standard of knowledge in the world

247
Q

Why was this controversial?

A

This seemed to contradict the strict liability of the CPA, meaning that producers could hide behind this.

248
Q

What a terms relevant in a claim of contract?

A

CRA 2016

SGA 1979

249
Q

What is the difference between a claim in contract?

A
  • Strict liability - does not matter if not at fault
  • Remoteness is on Hadley v Baxendale (less onerous)
  • Able to recover for actual product
  • However not able to recover for any third parties, only party to contract
250
Q

What is the definition of private nuisance?

A

Unlawful interference with a person’s use or enjoyment of land or some right over, or connection with it

251
Q

Who can sue in private nuisance?

A

A person with a right to exclusive possession of the land
- Owner-occupier
- Tenant
DOES NOT INCLUDE THOSE WHO LIVE AT THE HOUSE WITH NO PROPRIETARY INTEREST

252
Q

What happened in Hunter v Canary Wharf?

A

Large tower was built in Canary Wharf which interfered with many peoples houses. Only those with proprietary rights could claim

253
Q

Who is liable in private nuisance?

A
  1. The creator of the nuisance
  2. The occupier of the land from which the nuisance operates
  3. The landlord
254
Q

When may a landlord be liable?

A

If expressly or impliedly authorised the nuisance

255
Q

Authority for landlord liable under private nuisance?

A

Tetley v Chitty: let piece of land go to go-karting –> noise an inevitable consequence

256
Q

What was said in Walter v Selfe?

A

To be an actionable interference something has to be interfering with ordinary comfort, not dainty mods of living

257
Q

What is a good way of describing actionable interference?

A

Unlawful

This means substantial and unreasonable

258
Q

What was established at Sedleigh Denfield v O’Callaghan?

A

You can be liable for the acts of a trespasser if you adopt them.

259
Q

What factors are considered when deciding if interference is unlawful? (7)

A
  1. Extent of harm/impact on claimant
  2. Duration and frequency
  3. Character of neighbourhood
  4. Malice by defendant
  5. Public benefit
  6. Utility of the activity
  7. Abnormal sensitivity of the defendant
260
Q

What is included when examining extent of harm/impact on claimant?

A

Extent of harm is an objective test

Impact on claimant is a subjective test

261
Q

What is included when examining the duration and frequency of nuisance?

A

The more frequent, the more likely to be unlawful

262
Q

What about a one-off disturbance? (authority)

A

NO

unless has arisen from a continuing state of affairs [Spicer v Smee]

263
Q

What authority is there for character of neighbourhood?

A

Sturges v Bridgman - nuisance in Belgrave Square not necessarily in Bermondsey
Halsey v Esso Petroleum - locality and character of neighbourhood matters

264
Q

Authority for malice?

A

Hollywood Silver Fox Farm v Emmett: Silver foxes timid and if disturbed while pregnant will miscarry. Defendant complained of noise, so fired gun to disturb foxes and impede breeding

265
Q

What is included when examining the abnormal sensitivity of the defendant?

A

Whether the interference would be unlawful looking at the normal use of the land, ignoring abnormal sensitivity

266
Q

What happens if passes the abnormal sensitivity?

A

Then can use egg shell skull rule for damages

Can recover the extra damages

267
Q

What happened at McKinnon Industries v Walker?

A

Normal flowers would have been damages, but as sensitive orchids entitled to more money

268
Q

What is the remoteness test for private nuisance?

A

Cambridge Water v Eastern Countries Leath - SAME AS WAGON MOUND

269
Q

What defences are there for private nuisance?

A
  1. Prescription
  2. Statutory authority
    3/ Consent
  3. Contributory negligence
  4. Act of god
270
Q

What is prescription?

A

If defendant can show that he has been continuing nuisance for 20 years, then not unlawful RARE

271
Q

What is statutory authority?

A

If statute has authorised then fine

272
Q

What are not defences to private nuisance?

A
  1. Existence of planning permission (may be persuasive)
  2. Public benefit
  3. The fact the defendant was there first and the claimant ‘came in to the nuisance’
  4. Contributory actions of others
273
Q

What remedies are there for private nuisance?

A
  1. Injunction
  2. Damages in lieu of injuction
  3. Damages for past nuisance
  4. Abatement
274
Q

What types of injunction are there?

A

Prohibitory (STOP DOING SOMETHING)
Mandatory (START DOING SOMETHING TO RECTIFY)
A ‘quia timet’ (In anticipation of tort)

275
Q

How can a claimant get a quia timet injunction?

A
  1. He is almost certain to incur damages without the injunction
  2. Such damage is imminent
  3. The defendant will not stop without intervention by the courts
276
Q

When may there be damages in lieu of injunction? (authority)

A

Shelfer v City of London Electric Lighting Co. - small, quantifiable in financial terms
Miller v Jackson - no injunction as cricket for 70 years so public benefit
Kennaway v Thompson - injunction as speed-racing no public benefit

277
Q

When would you use negligence for a land claim?

A

If one off event

If suffered personal injury

278
Q

What is the definition of trespass to land?

A

An intentional direct interference with the owner’s possession of land

279
Q

What can be trespass on to land?

A
  • Entering on to land
  • Bringing anything in to direct contact
  • Damaging land
280
Q

What is land? (authority)

A

Surface of land and any building, plants or sub-soil own it [Bocardo v Star Energy]

281
Q

What are the rules on airspace? (authority)

A

owners may have the rights to the airspace above their land to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it’ [Bernstein v Skyviews]

282
Q

What are the two requirements for it to be treated as trespass to land?

A
  1. Direct interference

2. Intentional interference

283
Q

Who can sue for trespass to land?

A

Claimant who is in possession of the land

  • Owner-occupier
  • Tenant
  • SQUATTER
284
Q

What about causation?

A

Trespass is actionable per se

Therefore do not always need to talk about causation

285
Q

What remoteness test is used for trespass to land?

A

Re Polemis

286
Q

What defences are there for trespass to land?

A
  1. Justification/consent (owner’s permission or law)

2. Necessity (threat of harm to land etc)

287
Q

What remedies are there for trespass to land?

A

Injunctions

Damages

Law (4 decks)

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