Tort Flashcards
1
Q
Test for negligence?
A
- Duty of care
- Breach of that duty
- Causing damage to Cl?
- Defences
2
Q
Established duty of care categories (negligence)?
What type of cases relevant to?
A
Doctor / patient 👨⚕️
Employer / employee 📈
Manufacturer / consumer 🏭
Road users 🚗🚵♀️
(inc cyclists)
Defendant to rescuer where created dangerous situation so rescue was reas foreseeable 🧗♀️
Only personal damage (ie damage to property/personal injury - not pure economic/psych)
NB: there is NO duty police officer to suspect re way police conduct investigation
3
Q
Caparo test on categories for duty of care?
What cases does it apply to?
Explain each limb?
A
Physical damage (PI/property damage only)
If no established duty of care:
- Reasonable FORESIGHT of harm to Cl
(eg ❌ miscarried due to shock of road accident) - Sufficient PROXIMITY
- D should have C in mind / neighbour test
- legal/social duty - FJR fair, just and reasonable to impose duty (policy)
(eg less likely owed by public authorities to specific individual)
4
Q
Who do police officers owe duty of care to?
A
Public at large, not specific individual
(eg no specific victim)
comes down to fair/just/reasonable
5
Q
Policy considerations in fair/just/reasonableness of novel duty of care? (Caparo)
A
floodgates🌊
benefit to society
deter dangerous behaviour (means more likely rule in favour of Cl)
inc cost of insurance premiums if allow too many claims
6
Q
Will there be liability in negligence for omissions?
(explain general rule and each exception)
A
General rule: no
Exceptions:
1. not to make situation worse
(eg dive to save drowning person, ends up causing injuries to Cl - liable)
- act positively if had control over the other person or item
a) **special reli **to protect that person
(fact-dependent but may arise child-parent/instructor-pupil etc)
eg lifeguard to swimmer
b) to protect TPs
eg driving instructor to other road users where learner driving
eg youth offenders who escaped - Home Office liable (vic liability)
(don’t make worse luv ! b positive !)
7
Q
What is the test as to whether D has breached duty of care?
A
- How D OUGHT to have acted in circumstances
(Q of law) - Whether D’s standard fell below that ^
(Q of fact)
8
Q
How will the courts USUALLY determine standard of care owed by D?
(part 1 of breach of duty test - ie what D ought to have done)
A
Man on clapham omnibus / what would ‘reasonable person’ have done in those circumstances
Objective
Don’t consider personal attributes
eg
driver, unexpected disability, assessed against standard of reasonable driver who has condition but is unaware of it
(so not liable if have sudden heart attack)
9
Q
Standard of care owed by skilled D?
A
anyone who holds self out as having SPECIAL skill (not just doctors)
must meet higher standard required for the task which would expect from someone with that skill
Not liable if actions accepted by reasonable body of professional opinion
- but up to court to decide if this body of opinion is reasonable / responsible
(otherwise profession could excuse self from liability)
(eg reasonable manufacturer/reasonable doctor)
10
Q
Standard of care owed by under-skilled Ds?
(negligence)
A
must still meet minimum standard required of task
and if undertake task requiring special skill, could be negligent for attempting in first place
e.g.
- learner driver = standard reasonably competent driver
- no allowance inexperienced doctor
- odd jobs around house = owe skill of reasonably competent amateur carpenter etc
(could mean negligent for attempting something outside capability)
11
Q
Standard of care owed by children in negligence?
A
Ordinary child of same age
Younger child is, less likely able to foresee harm (v unlikely liable)
12
Q
Can child under 18 be sued in civil law?
A
Only if has an adult to represent (litigation friend)
(often not worth suing cos children have no money)
13
Q
What helps to determine whether D FALLEN BELOW standard of care?
A
- MAGNITUDE of risk created; and
a) likelihood injury
b) severity of injury
(e.g. goggles bcos blind one eye) - PRECAUTIONS D ought taken
(resources irrelevant)
MP fell below standard
LS is the mag.
14
Q
How will courts assess whether RISK D has taken falls below standard of care taken?
A
- Likelihood of injury
- justified if the risk of injury was ‘fanatical possibility’
eg child caused lorry to swerve, driver killed - was realistic possibility
eg dog broke window, pedestrian injured by splinter of glass - not liable
- Severity of injury
- more severe = more likely
eg no goggles, risk accident small, but blind in one eye so would mean fully blind, damaged good eye
= total loss of sight
- reasonable care required goggles should have
(NB even if justified in risk taken, still need to consider precautions taken - 2 parts)
15
Q
In deciding what PRECAUTIONS D should have taken to risk, what will courts consider?
(second part of breach test - did D fulfil standard of reasonable person)
A
what practical measures could have been taken, inc cost
if substantially reduce risk at low cost - more likely unreasonable
but great cost small reduction risk - reasonable to have done nothing
Ds lack of resources not an excuse (mean)
eg
slippery floor due to leak, covered sawdust but couldn’t cover all, kept factory open - not in breach (high costs of closure/risk employees small)
16
Q
Will courts consider D’s purpose in assessing breach of duty in negligence?
A
Yes
Less likely if societal benefit
If human life is at stake, may be justified in taking abnormal risks
(but obvs still can be liable - eg ambulance failing to use sirens)
17
Q
Will courts consider ‘common practice’ in assessing breach of duty in negligence?
A
Yes if can show complied with accepted practice in profession
But not if that practice is negligent one
eg practice as not to check that ferry doors were shut
18
Q
At what period of time is D’s state of knowledge assessed from in negligence?
A
Current knowledge
eg at time doctor did something, risk of seepage was not known - could not taken precautions
19
Q
Burden of proof for establishing breach of duty in negligence and to what standard?
A
Claimant
Balance of probabilities
20
Q
What Latin rule can help claimants in negligence where there are no witnesses available?
Explain test for relying on.
Describe to client?
A
Res ipsa loquitur - ‘the thing speaks for itself’ - presume D’s fault:
- CONTROL of D or someone D responsible for
- would not usually happen w/o negligence
- CAUSE is UNKNOWN to Cl
Courts can infer negligence without hearing detailed evidence
21
Q
How can D defend selves where Cl relying on res ipsa loquitur (the thing speaks for itself)?
(negligence)
A
- Provide evidence as to how it happened; or
- Show that they took reasonable care at all times
22
Q
what can Cls in negligence rely on where D has also been convicted of criminal offence?
A
if convicted criminal offence, presumed in subsequent civil proceedings to have committed the offence
Cl can rely on to show that careless conduct did take place - don’t need to prove it again
but not always helpful
eg if criminal case was driving w/o insurance - doesn’t show that D acted negligently
23
Q
3 Qs in assessing causation for negligence?
A
- But for? (or material inc/contribution); then
- Novus actus interventions? (intervening act); then
- Remoteness?
(same for nuisance/D v S etc)
24
Q
Explain test for factual causation in negligence?
A
but for negligence, would harm have occurred
eg
even if patient was correctly diagnosed, it would have been too late
If multiple possible contributors - use material increase
(e.g. mesothelioma)
If but for fails, use material contribution
(e.g. taxi driver vs cyclist)
25
Explain material contribution and material increase approach to causation (negligence)?
If multiple contributing causes of loss,
Cl not need to prove it is the main cause (ie but for)
Just that it MATERIALLY:
a) contribute to loss; or
b) inc RISK (v rare)
26
When will Claimant be able to rely on material increase in risk for causation?
Scientific uncertainty as to actual cause
Probs just for mesothelioma
27
When will Cl be able to rely on material contribution to loss (negligence)?
if multiple simultaneous causes, must have materially contributed to harm
doesn't have to be only or main cause
e.g.
- guilty dust and innocent dust - both contributed
- 5 possible risk factors, each could have caused damage / only resp for 1 - not liable
(because it just added to a list, it need to be cumulative and add ONTO the other factors, not be seperate)
e.g.
- taxi driver swerved to avoid motorbike which pulled out
- taxi driving above speed limit
- wouldn't use but for, would use material contribution
- because if used but for, both could point to the other
28
if Cl suffers one injury after another, and two injuries impact each other, to what extent should subsequent D be liable?
extent that own negligence made Cl's damage worse
29
How are damages divided where Cl suffered injury with more than one cause
If injury is DIVISIBLE:
- will apportion damages accordingly
(eg multiple employers, apportion based on how long worked there)
If indivisible:
- 2 or more liable for same damage
- Cl can recover damages IN FULL from one OR ALL of them
- then Civil Liability (Contribution) Act will allow D to recover from others
(eg D1 liable 90%, D2 liable 10%, can recover 100% D2)
30
Does an instinctive novus actus interventions break chain of causation in negligence?
no
e.g. D threw firework at TP, TP threw firework away from self
D still liable
31
Does an negligent novus actus interventions of TP break chain of causation in negligence?
(eg medical?)
only if unlikely foresee as consequence of negligence
Main one: cause injury, then had negligent medical treatment - still liable, unless grossly negligent
eg
D1 negligently drove lorry. blocked 2 lanes.
driver 2 stopped to help.
driver 3 negligently failed to notice. killed driver 2.
drivers 1 and 3 both liable
Foreseeable that other drivers may come too fast
32
Does an reckless or intentional novus actus interventions of TP break chain of causation in negligence?
(nb reckless/intentional instead of negligent)
Q of fact
Unlikely if D ought foreseen
e.g. painter left door open, told to ensure was closed, thief robbed necklace
- liable
(court placed weight on relationship between parties implying agreement to take care)
eg Ds negligently caused damage to council house, squatters recklessly damaged - squatters broke chain
33
Do ACTIONS OF CLAIMANT break chain of causation in negligence (intervening act)?
Only if entirely unreasonable
Not if careless
E.g. weakened Cl's leg, injured self going down steep stairs w/o handrail - broke chain. v silly !
E.g. neck brace, difficult to use glasses, fell down stairs - can u blame them !
(nb carelessness can be used as contributory negligence)
34
General rule on remoteness of damage in negligence and 2 provisos?
(in summary)
Damage **REASONABLY FORSEEABLE**
Exceptions:
1. 'similar in type' 📝
- as long as type of damage reas foreseeable, still liable if way occurred was unforeseeable
(eg rare disease rat urine, not same in type - only rat bites were)
(leave candles out, child goes crazy, burning - same type/still liable)
2. 'egg-shell skull' 🍳
- if some loss RP, still liable - even if full extent not RP
(eg bleeds to death, even tho minor cuts)
(loss of wages higher cos t fury - still liable)
(pass REMOTE to watch ❤️🏝️- type on paper? eggs in morning?)
35
General rule on duty of care for pure economic or psychiatric loss and why?
D owes no duty
Because insufficient proximity
36
What is NOT pure economic loss and pure psychiatric harm?
Is it recoverable?
**consequential economic/psychiatric fine. PEL and pure psych not.**
consequential
economic = money loss follows from physical damage
yes recoverable
eg
bonfire destroys shed so pay:
- £500 replacement shed
£5 for local garage to store mower
psychiatric = follows from personal injury
eg diagnosed phobia and nightmares after car accident causes leg injury (can recover for both)
^ none of this is pure economic loss, it follows on from damage
YES is recoverable
37
Which types of loss are classified as pure economic loss and are they recoverable?
General rule is no duty of care so not recoverable in negligence
Economic loss:
1. Caused by acquiring defective property
(e.g. coffee machine faulty. PEL.)
2. Unconnected to personal injury or physical damage to Cl
- Statements
(e.g. negligent investment advice)
- Actions
(e.g. release animals causes outbreak)
3. Caused by damage to property of a TP
(eg damage to train lines means have to pay for a taxi)
38
Explain what economic loss caused by acquiring defective property is and whether can sue in negligence it?
e.g.:
- house with defective foundations
- faulty hairdryer
Tort would interfere with contract law.
Damage would be PEL and no duty care owed for PEL.
Could recover for negligence if caused personal injury/damaged other property - since is consequential.
Can't recover PEL e.g. replacement/repair costs of that property.
best example: (e.g. AirPods overheated, damaged bag, could recover replacing bag as consequential. but couldn't recover cost of AirPods since PEL.)
e.g.
- buy a house. foundations dangerous.
- defects were apparent before caused physical damage (only thing suffering damage was house itself)
- not recoverable. selling property or paying for repairs is the remedy and that is PEL.
- simply bought something less valuable.
- would be recoverable if discovered due to personal injury or damage to property as a result of the defective item
faulty hairdryer
- recoverable only if caused fire/PI
- but replacing hairdryer PEL and not recoverable
swimming pool not constructed properly
- no one hurt and nothing damaged but cost repairs
- not recoverable
39
Explain when there will be economic loss caused by damage to property of a TP and if it will be recoverable?
NOT recoverable because classed as PEL.
e.g.
- have to pay for taxi back from Liverpool because trains are cancelled / trains cancelled due to train operator negligence
- employee's damaged cable, cable belonged to supplier's not employer, employer suffered economic loss from damage but can't recover
(employer could recover for damage to cable and consequential losses if owned cable)
(nb would be liable if damage is caused **by D** to Cl's stuff/body - not case pure economic loss and proximity exists)
40
Is economic loss caused by negligent actions recoverable?
Can't recover if no physical damage.
Classed as PEL.
E.g.
- D caused outbreak of foot and mouth, C had to close their market.
- not liable - loss was caused by closure to market, not physical damage.
(if cattle died, I think there would be able to recover)
41
When will there be a special reli between D and C?
*imp*
(one effect of this is that negligent statement resulting in pure economic loss = liability)
AR.
1. D **assumed** responsibility towards C:
- D knew **reason** for advice?
- Knew advice would be **communicated** to C
(either individually or as member of ascertainable class?)
- D knew likely rely without **independent inquiry**
- Did C act on advice to **detriment**?
2. Was it **reasonable** for Cl to rely on that advice?
(the above would probs show it was)
e.g.
- auditor told do a report, did not know would be communicated to bidder - not liable
- but told to do report for takeover purposes and identified bidder, obvs would go to claimant - liable if negligent eg misled
42
is there duty of care owed for negligent statements made in social situations, which cause pure economic loss?
general rule is no as no assumption of responsibility
but yes if:
1. assumed responsibility
2. reasonably to rely
will be case if friend has greater skill/knowledge and Cl made clear relying.
eg
friends, sold car, car unroadworthy - seller had more knowledge - so it was not simply advice on social occasion - assumed resp
43
Can you get damages where D's negligence causing pure economic loss was made to a third party instead of the claimant?
Is this for negligent statements only?
Few examples - one imp example!
Yes - if Hedley Byrne principle applies (ARRR)
- **special** relationship:
- a) D assumed responsibility to C; and
(knew purpose/communicated/indeo enquiry etc)
- b) reasonable to rely on
(AR is to Cl but TP relies on)
Can extend to:
- **negligent breaches of contract**, only if relates to **duty to take reasonable care** (!!!!!!)
- negligent provision of **professional services** (eg will drafting)
*eg would-be beneficiaries*
e.g. gives bad reference to new employer, employee could claim.
44
Can claimant rely on tort if have contract with D for professional services?
Only if duty under contract is to take reasonable care
(and therefore consistent with tort)
45
2 main requirements for D to rely on exclusion notice in tort?
(inc negligence and OLA)
1. Reasonable steps to bring to Cl's **attention**
2. Covers loss suffered by Cl
46
What can D never EXCLUDE liability in negligence for?
What is the one exception?
- personal injury
- death
As per CRA and UCTA
(check when get to it but think unless private occupier)
(i dont think u can)
47
What will be considered in determining whether D EXCLUDE liability in negligence/OLA under UCTA/CRA?
Explain.
1. UCTA (B2B)
- REASONABLE (in circumstances)
- take into account:
a) bargaining power
b) could they have obtained alternative advice given cost/time?
(eg could I have found a new surveyor or effectively forced into this one and therefore the exc clause)
c) difficulty of task subject to clause
d) practical consequences for parties, inc insurance
2. CRA (B2C/C2C)
- FAIR (consider circumstances)
(fairness cos consumers fairness seems right)
48
Requirements of injury for pure psychiatric harm
If suffered pure psychiatric, injury must be:
1. Caused by sudden shock; AND
(not gradual build up - eg depression after caring for injured relative over long time)
2.
- Medically recognised; OR
(eg not simple anxiety)
- Shock-induced physical condition
(eg miscarriage or heart-attack)
applies secondary and primary
49
Who will be primary vs secondary victims of psychiatric harm in negligence?
Primary
- in **arena** of danger; or
- **reasonably** **thought** they were
(eg miscarried because car accident / though would be in danger, even if weren't)
Secondary
- **WITNESSES** or **FEARS** injury to another
50
When will duty of care be owed to primary victim (psychiatric harm)?
Risk of **PHYSICAL** harm foreseeable, even if risk of PSYCHIATRIC harm wasn't
*but remember may be non-consequential loss, in which case standard categories apply and no need to consider*
^ think i mean if injury DID occur as a result of breach, then satisfies w/o being fors.
(eg PTSD arose from injured leg and road user so est duty of care)
51
When will duty of care be owed to secondary victims?
Explain each part.
(psychiatric harm)
(assuming already satisfied test on sudden shock etc)
psychiatric foreseeable and 3 proximities.
1. PSYCHIATRIC injury foreseeable 🧠👀
ie normal **fortitude** in Cl's position
2. Proximity of relationship 😘
- close relationship love and affection ❣️
3. Proximity in time and space ⏰🪐
- present at accident or ***immediate aftermath***
4. Proximity of ***perception** 🕶️
- see or hear the accident, or its immediate aftermath, with **own senses**
(Alcock ^)
52
When will there be proximity of relationship for secondary victim psychiatric harm?
Close ties love and affection
Presumption if:
- spouses, parent/child, fiancés 💍
^ D can rebut to show not that close
Claimant must prove close relationship exists if fall outside those categories
53
When will there be proximity in:
a) time and space
b) perception
for duty to secondary victims?
a)
- immediate aftermath, even if not present at time
e.g.
- 1 hour later, were in same condition, counts
- 8 hours later, asked to identify in mortuary, didn't count
b)
- see or hear event, or aftermath, with own unaided senses
(not communicated by a TP)
- if live on TV and no images of those individuals, doesn't count
- if broadcast with images, usually novus actus interventions
- but maybe liable from broadcast in exceptional circumstances
(eg children on hot air balloon, live on TV, parents watching, suddenly burst in flames)
54
Is a duty of care owed to rescuers?
They are treated on same rules of primary and secondary victims
No special rules afforded to professional rescuers
(ie not expected to have higher degree of fortitude)
Will usually be harder for rescuers to satisfy secondary victim and show close tie of love and affection
e.g.
- rescuer asked to crawl under railway to save people, primary victim as put at risk of physical harm and in arena of danger (even though didn't suffer)
55
Does egg shell skull rule apply to psychiatric injuries?
At remoteness stage yes - so can get damages to greater extent than foreseeable
But remember secondary victims would first have to show that ordinary person of normal fortitude would have also suffered psychiatric harm
56
What is employer's common law duty?
(negligence NOT VL)
(there are 4)
1. Competent fellow staff 👭
2. Adequate materials; and 🔧
3. Proper system of work and supervision 👀📈
4. Safe place of work ⛑️
57
Can an employer delegate their common law duties?
(negligence)
Examples show why this is imp
No
H and Tommy
(it is a personal duty)
(employee doesn't need to show who is to blame)
E.g.
- local contractor was negligent in servicing machinery
- employee injured
- employee can claim against employer
(employer can claim against contractor)
E.g.
- knocked over outside factory by lorry driven by a supplier - not liable
58
Explain duty of employer to provide competent staff and when it arises / employer becomes liable?
(negligence)
Employer** knows or ought** to know the risk of a particular worker
Would ought to know if not adequately train or supervise
Can be psychological and physical harm
e.g. bullying
(nb: could often ALSO bring vicarious liability claim in these instances)
59
When would employer be negligent for failing to supply adequate plant and equipment?
What must employee show if suing for inherent defects?
(plant, machinery and equipment)
- inadequate in some way
(eg defects, not maintained)
- don't supply **what need for the job**
(eg safety goggles)
Inherent defects:
1. failure on part of TP (eg manufacturer);
2. causation (ie fault caused injury)
(^ statute allows sue employer cos hard to sue manufacturer if u aren't the one who bought)
60
Explain duty on employer to provide safe SYSTEM of work?
(negligence)
Wide -ranging and onerous / easy for Cls
Must take reasonable steps to ensure safe SYSTEM implemented, by:
- training
- supervising, at least at outset
- monitoring compliance
- disciplinary if fail to comply
61
Explain common law duty in negligence to provide safe WORKPLACE
and compare to statutory Occupiers Liability Act requirement to provide safe workplace?
CL
- take reas steps to provide safe place to work
Statutory/OLA - CL is more onerous:
- OLA can be delegated
(tom not liable)
- OLA only applies if 'occupier' / CL applies everywhere - eg on site - have to check safety and eradicate/minimise
62
When can duty to provide safe system of work extend to stress at work cases?
(ie requirement to establish and considerations)
(negligence)
Yes
(Hatton Guidelines:)
'Threshold Q' - Was injury to health via stress reasonably foreseeable?
(PM. 14 hrs. Wght Ls).
Considering:
1. nature and extent of work done by employee; and
(eg obvs too high workload)
2. signs from employee
^ employer can assume employee is fine and take what told at face value
(eg off work with stress, return to more work)
MUST relate to work and not personal problems.
Duty to take steps if those considerations satisfied. If don't, breach.
63
To prevent breaching common law duty, employers must take ___ steps?
How is breach of duty assessed?
Reasonable
Assessed on usual principles
(eg standard reasonable employer, consider magnitude risk and precautions)
^ which makes sense because CL duty is in negligence x
64
Will employer owe extra duties to certain employees?
Yes - owe duty to each individual employee
But if require an additional duty, employer must know of this
E.g. if one employee has one eye, owe extra duties to protect them
- links to magnitude of risk and costs/practicalities of precautions
(balancing exercise)
- but employer not liable if (reasonably) unaware
65
Can employee bring breach of regs under Health Safety Work Act be brought under civil claim? Will they be relevant other ways?
No
Criminal offence
BUT
Relevant to the showing standard reasonable employer should have met
66
What must D establish for defence of consent in negligence?
What is this defence aka and is it a full defence?
1. Claimant had full KNOWLEDGE of nature and extent of risk; and
2. Claimant willingly CONSENTED to accept risk of being injured due to negligence
Full defence. Voluntary assumption of risk.
67
When will claimant have willingly consented to negligence?
Can Cl consent in motor vehicles?
How does it applies to employees?
(second limb of consent requirement)
Freely and voluntarily consented
If there reli where doubt whether can truly decide, no consent
**D cannot rely on defence of consent in motor vehicles**
Employees under duty so little choice but to consent, rarely succeeds
e.g.
- if v obvious that cyclist is v drunk, then consented / if knew drinking but not extent, not consented
e.g. employee
- just bcos consented to work despite knowing risks, did not consent
68
Explain how consent defence operates with rescuers?
Applies same to professional or lay rescuers.
Rescuers will **NOT** have consented if:
1. rescuing people endangered by D's negligence; and
2. under **moral, legal or social** duty to act; AND
3. acted in **reasonable** way / natural consequence of D's negligence
Rarely succeeds - would often use con neg instead
(otherwise, rescuers rarely be entitled to anything!)
(when rescuer been very silly!)
69
When will contributory negligence be found?
3 main examples
- Carelessness of C
- contributed to own damage
- **fell below standard reasonable person**
Examples
- failing to wear **seatbelt** 💺
- motorcyclist crash **helmet** ⛑️
- accept lift from driver know to be **drunk** 🍷
(even if too drunk to appreciate D's intoxication)
*can use con neg but not consent in motor cases*
70
To what extent should damages be reduced in contributory negligence?
- **just and equitable**
- C's share responsibility
- culpability (ie blameworthiness)
- causation relating to damage (ie on C's part) - not about who caused accident
71
If relying on seat belt/helmet failure to wear for con neg, what must D show?
Causal link
i.e. it would have made a difference to injuries if C did wear
eg if didn't wear helmet but broke leg, can't rely on it
72
Likely % reduction for failure to wear seatbelt/motor cyclist helmet? (con neg)
if made no diff - 0%
if less severe if wore seatbelt - 15%
if could have avoided if worn - 25%
73
when can a child be contributorily negligent?
if took same level of care that reasonable child of same age would have
very young = very unlikely
74
Can a child's damages be reduced due to contributory negligence by parents?
(eg failed hold hand whilst crossed road)
No
BUT could seek contribution under Civil Liability Contribution Act
75
When will rescuer be contributorily negligent?
Standard of reasonable rescuer, taking into account emergency situ
Wholly unreasonable disregard for own safety
Courts rarely find (trend here - courts love rescuers ! and reasonable rescuer common standard )
76
What will court consider in finding contributory negligence by an employee?
All circumstances
How noisy, dull and repetitive work is
^ more of that = less likely con neg
(more likely find for offce than factory worker)
77
If Claimant injured whilst trying to save self due to D's negligence, will they be liable for contributory negligence?
(eg jumped out of moving vehicle)
If reasonable response to danger, no
E.g.
- trapped in loo owned by D, thought could climb over door, slipped, found con neg and reduced damages
- but yes when jumped out of moving vehicle
78
When will D be able to rely on defence of illegality in negligence?
Is it complete defence?
full defence.
damage DIRECTLY result of illegal activity.
must be sufficiently serious offence.
eg
- 2 burglars, B1's negligent driving injured B2, full defence illegality
(B2 couldn't claim)
- cyclist and passenger drunk, passenger injured, passenger encouraged cyclist, direct result / no defence
- park in restricted zone, traffic offence, crashes into car - not satisfied
(because not directly linked)
79
measure/aim of damages in tort?
compensatory
ie put in position as if wrong hadn't occurred
should be no better or worse off
in PI - try to compensate for injury
80
is there a duty to mitigate in tort?
yes
eg if lose job due to negligence, should look for another
eg if lose income because vehicle damaged, should replace it
feels fair. !
81
what is one action rule and what does it mean in tort?
(clue; links to something discussed in that Friday business law session)
can only bring one claim for a single set of facts
so court will award single lump for losses already suffered and those expected to suffer in future
eg
for future lost earnings if disabled due to accident
82
Special vs general damages in tort?
Special = can calculate precisely
(eg lost earnings already incurred)
General = can't calculate precisely and left to court to determine
(inc pain, suffering, loss of amenity and all future losses)
(think of it as general damages because a general is like a judge 🪖👩⚖️)
(lol also because general as can't reach specific figure)
83
Two types of losses for personal injury? Explain each.
Pecuniary
= capable of mathematical calculation in money
- can be pre or post trial
e.g. lost earnings and medical expenses
Non-pecuniary
= not capable mathematical calculation in money
- main example is personal injury
84
What makes up the losses for personal injury?
What type of losses are these?
PSA
pain, suffering, loss of amenity
Non-pecuniary losses
85
What type of things do damages for pain and suffering cover?
Is it assessed subjective or objectively?
Could you recover pain and suffering for period in which were unconscious? (e.g. coma)
(tort)
NB: pain and suffering dealt with together / as one sum
fear future surgery
anguish knowing life expectancy shortened
past/present/fiuture pain
SUBJECTIVE - which is why cannot claim for period where unconscious
86
What does loss of amenity seek to compensate for?
Give examples.
Is it subjective or objective, and implication of this?
loss of enjoyment of life
e.g. loss of free movement, sight, smell, marriage prospects, pursue hobbies
means that a claimant who was very active would recover more damages
Objective - so no need to be conscious to recover
87
How are non-pecuniary damages quantified?
individual facts of case
Consider Judicial Guidelines on Assessment Damages in PI Cases etc
(so therefore considered general damages - bcos can't reach specific figure)
88
Will Cl have failed to mitigate loss if choose private treatment instead of NHS?
NO!
NB can't recover costs if treated by NHS - sometimes D will be required to pay towards NHS treatment but this is dealt with outside of damages
89
If claiming for **loss of earnings** pre-trial, should claimant receive net or gross salary?
will this be special or general damages?
Also should they receive compensation for bonuses etc.
Net
- i.e. deduct (from gross) tax, national insurance contributions AND pension contributions
(normally deducted at source)
🥅think of it as u have a net and when u put in a net, those things are sifted out.
Yes and any perks eg creduced rate mortgage
**Special** damages since can calculate precisely
(special = financial)
(general = non-pecuniary/judge needs to asses)
90
What 2 steps do courts take in calculating loss of future earnings?
1. Multiplicand
- gross ANNUAL loss (ie before tax) at date of trial
- considering potential promotions if v likely
- not inflation
- deduct tax, nat ins and pensions to get net
2. Multiplier
- how long lose this money for
- likely to work again in future?
- or up to retirement age?
91
How do courts work out multiplicand for lost future earnings?
Do they consider inflation?
(ie step 1)
- gross annual loss at date of trial
- can consider inc salary if V LIKELY to happen
(eg promotion)
- can't consider inflation
- deduct tax, NI and pension
(resulting figure = net annual loss aka 'multiplicand)
so the multiplicand will be net.
92
How does court assess 'multiplier' for lost future earnings?
(focus just on what components of calculation will usually be)
- how many yrs will lose £ for
- if never work again, how long left working life expectancy
- eg could have worked 25 years longer and earned 25k p/y:
25 years (multiplier) x £25,000 (multiplicand) = £625k
- court also add discount rate (currently 0.25%) to multiplier to reflect interest
^ use Ogden tables to find multiplier
- eg. ^ becomes:
25.2 years (multiplier) x £250,000 (multiplicand) = £630k
93
Should claimants receive a lump sum for personal injury damages?
General rule and exceptions.
Yes
(cover past, present and future)
Except 2 statutory provisions:
1. can award **provisional damages **
if there is risk of potential deterioration
award on assumption that Cl will not develop
but if does, then entitled further damages
2. sometimes court has **discretion** to award as periodic instead
(that is all it says)
94
Why may courts adjust the basic multiplier figure, aside from for interest?
Contingencies of life
- eg if Cl at particular risk of redundancy
Whether may have been able to do some other less profitable work
95
If claimants life expectancy has been shortened due to accident, can they claim for lost earnings in period during which they will now be dead?
If so, how?
Yes
(if death interrupted working life expectancy only - not if would have been retired etc)
Calculate in normal way (multiplicand/multiplier)
Then deduct amount would have likely spent on self
(considers if have dependents etc)
(so it's a bit like the amount they would have left in will)
96
How to assess child's potential future earnings if injured? (tort)
V difficult to assess if v young
May consider parent's income and assume reach similar level
Or may consider particular aptitude of child
97
Can Claimant recover for things like carers and help with housework arising out of accident?
What about if a relative has given up paid work to care?
(tort)
(think of that IM video)
Yes to both
For carers etc would be market rate
For relative will be lost earnings, with max of market rate
(TP cannot recover from D)
98
If Claimant still able to work current job, but lost earnings capacity as may lose job / be disadvantaged on job market, can they claim for this?
Yes
V speculative - Court tries to put money value on risk of them losing job
Known as Smith v Manchester Corporation Award
NB only applies if still working in original job - if already forced to take lower paid work, can claim lost future earnings in usual way
99
Exception to general principle that claimant should not be better off when compensating for tort?
Don't deduct these from damages:
- charitable payments
(eg from employer)
- ill-health pensions
- insurance payments
(because otherwise these would essentially go to D)
ahh so we don't care about tax or NORMAL pension going to D but DO care about insurance/charity/ill-health pensions - fair !
100
When can state benefits be reduced from Claimant's damages in tort?
(meaning that D would not have to pay to cover them)
Can deduct from C damages OTHER than for PSA:
- cost of care
- loss of mobility
- lost earnings
^ and must re-pay to state
101
If claimant died before tortious claim settled, under what Act can a claim be brought?
Is consideration taken to inc value to the claimant (in form of their estate)?
(eg insurance money paid out so have more money)
1934 Law Reform Act (allows existing causes of action to continue after death - does not allow new claims)
Not apply if claim settled
And no.
e.g. value of claim would not be less because now have insurance money
102
If Cl died before received award for tort
under what requirements can Cl's funeral expenses be claimed by Claimant's estate against tortfeasor?
Yes
Must be reasonable AND paid for out of the estate
(nb: if Cl died before tort claim settled, funeral expenses are the only damages arising out of death which D can be expected to pay for - eg can't get for lost future earnings etc)
103
If bringing claim under 1932 Law Reform Act, can it cover loss incurred after death due to D's negligence?
(eg lost income, pain, suffering, amenity)
No
Only lost income etc up to death
(if got dependents, use Fatal Accidents Act)
104
who usually commences claim under Fatal Accidents Act?
(where died as a result of negligence but leave behind dependents)
PRs
But can be brought by dependents themselves
105
Claim under Fatal Accidents Act 1976 allows dependents to claim.
It is described as 'parasitic' upon original claim of deceased.
What does that mean?
Can't use if made claim against D when C was alive
(one claim rule)
Also usual defences apply
(contributory negligence/consent/illegality)
106
Three possible claims under Fatal Accidents Act?
1. On behalf of dependents for **loss of dependency**
2. Damages for **bereavement**
3. **Funeral** expenses if paid by dependents
107
What must individual satisfy to claim for loss of dependency?
1.Either :
siblings, parents, current and former spouses, cohabiters of at least 2 years, children
2. Actually were financially dependent
- meaning had reasonable expectation of pecuniary benefit
- inc cost of replacing services which D provided for free (child care etc)
- child's dependency ends at 18, unless going into full time education
108
How are damages for loss of dependency calculated?
(Fatal Accidents Act)
Multiplicand =
deceased's net annual earnings
- reducing amount deceased would have spent on self
- increasing by any contributions towards family wealth other than salary
(eg company car, reduced shopping bills, gardening/childcare which provided for free)
Multiplier = period for which dependency would have continued
- eg if Cl would have relied on until 18
- eg if reliant for rest of deceased's working life
^ use Ogden tables to convert into multiplier
e.g. for wife:
multiplicand
- net earnings + perks of job + value of gardening
multiplier
- balance of working life, unless evi either of them would die before then
109
When calculating damages under Fatal Accidents Act, do you consider:
- amount to be paid out to dependents under will
- likelihood of dependent spouse remarrying
No to both
110
Who can claim for bereavement under Fatal Accidents Act?
1. spouse
2. parents (or mother only if illegitimate) of unmarried minor
3. cohabiting partner in household 2 yrs immediately before death as if spouse
NOT CHILDREN ! shocker
(nb is a fixed max sum currently £15k - so if multiple parents, would split between them)
111
If dependents have paid for funeral expenses instead of the deceased's estate, can they claim from tortfeasor?
Yes under fatal provisions act
(need to check but pretty sure if dependents paid, its FPA and if estate paid, its LRA)
112
Under vicarious liability, is employer liable INSTEAD of or in ADDITION to employee?
ADDITION
Can sue either or both
If suing both, jointly liable
(so can't claim twice)
113
Requirements for employer to be vicariously liable?
1. Worker is an employee or in **reli akin** to employment
(means/activity/took risk/control - not contractor)
2. Employee committed a tort
3. **In course** of employment
(frolic of own?)
(authorised)
(unauthorised way authorised act)
114
What is an employee or reli akin to employment for VL purposes?
Include criteria to help decide
criteria to help determine if AKIN, such that FJR to impose:
1. has more **means** to compensate than employee/expect insured 💸
2. committed in **activity** undertaken by employee **on behalf** of employer 🏋️♀️
3. likely relates to **business** of employer 📤
4. **by employing** the individual to do that job, will have created risk of tort
5. employee to some degree under employer's **control**
IMP DISTINCTION: **NOT** VL for **independent contractor**
- employee performs **service** for **one** person (employer)
- contractor is **self-employed** (eg plumber) / employee receives wage
115
what counts as 'acting in course of employment'?
(vicarious liability)
1. wrongful acts which employer authorised
e.g. off-duty pushes someone trying to steal from employer - **implied** authorisation
2. wrongful unauthorised ways of carrying out authorised act
(eg dropping cigarette whilst unloading oil, causing fire - still valid)
116
If an employer expressly prohibited an act, would they be VL if employee did it?
(relevant to whether within course of business)
only if done to further employer's business
(eg employ someone under 18 despite forbidding - VL if did to help deliveries)
(not if gave hitch hiker a ride for no business reason)
117
What are intentional torts and will an employer be vicariously liable?
(break down into constituent part)
(links to will it fall in course of employment)
Usually criminal acts
eg fraud/trespass against person ie an attack
Generally no (because unlikely authorised)
But yes if:
1. **authorised** by employer; or
2.
A) committed **during course ** of employment; and
(frolic)
B) sufficient **connection** between position and conduct that FJR
e.g. VL for sexual assault committed by employee **caring** for children in role as a warden
e.g.
employee attacks customer on car park after hearing them **complain** about her
118
When will employee be on 'frolic of their own' and therefore employer not VL?
DRIVING TO WORK NOT USUALLY ACTING IN COURSE OF EMPLOYMENT! shocking
(although actually me driving to work playing taylor swift 10 minute version didn't feel like I was at work)
Q of degree on
1. **geographical** divergence and
2. departure from **task**
- going for lunch is incidental to work
e.g.
employed to deliver furniture. departs from normal route. accident occurs. consider
- **major detour** or new route
- business or own thing
e.g. going to visit relative in hospital
119
If employer paid all compensation after being found VL, how can they recover from D?
Via indemnity
Jointly liable
But (if insurer paid out), employers liability insurers have agreement not to pursue indemnity claims unless evidence wilful misconduct of employee
120
what 4 things will visitor need to establish for occupier liability?
1. D is occupier
2. They are visitor
3. Suffered loss due to STATE of premises
4. Establish that occupier failed to take REASONABLE CARE of visitor's safety
(no need to show duty of care/breach)
121
Who is occupier for purposes of occupier liability?
Can you have multiple?
sufficient degree control over premises
(even if not owned)
e.g. landlord of block of flats
- individual flats = tenants
- landlord = staircase
can have multiple
eg independent contractor working on premises and owner of premises
Q of degree
(eg decorator painting house)
(more likely if contractor on large developer)
122
Who is a visitor vs trespasser (OLA)?
visitor:
- express or implied permission to enter
inc entering under contract or to exercise legal right
eg
PO with warrant
sales representative walking up to front door (unless sign saying no salespeople)
trespasser:
go behind till
enter "staff only"
entered cinema w/o paying
123
what aside from standard buildings are classed as premises for OLA?
vessels vehicle and aircraft
124
what is the 'common duty of care' under OLA?
(ie duty to ___ )
occupiers to visitors
take** reasonable care**
to ensure V reasonably safe in using premises for reason permitted to be there
considering all circumstances
(ie **reasonable occupier**)
125
what visitors get special treatment under OLA? explain.
1. those coming to exercise skills
- lower standard
- can assume visitor guards self against risks related to job
(eg not liable if window cleaner injured on ladder due to loose window handle, liable if injured on stairs as not incidental)
2. children
(applies same way to trespassers)
- inc standard if there is dangerous ALLUREMENT
(eg deadly berries)
- reasonably safe for child accompanied by GUARDIAN
(always entitled to assume accompanied)
(MIRANDA - ALLUUUREMENT AND PENNY!)
126
Can occupier avoid liability to visitors under both OLAs via a WARNING?
(ie trespassers and visitors)
Only if 'adequate'
Meaning:
1. nature of notice
specific vs general
(specific more likely sufficient)
(eg danger slippery floor vs danger)
2. nature of **danger**
- specific warning if **hidden** danger
(eg "danger very hot water" instead of danger)
3. **type** of visitor
e.g. written warning unlikely sufficient for child or **non English** speaker
(so may need to put **obstacle** eg barrier)
127
Difference in effect of warning notice vs exclusion notice under OLA?
Warning notice = prevents breach of duty arising
(eg please can customers take extra care when crossing lobby as being refurbished)
Exclusion notice = acts as defence if duty already arose
(accept no liability from refurb of lobby)
128
Requirements for D to have discharged common duty of care under OLA by hiring independent contractor?
Explain each.
Acted REASONABLY in:
1. employing independent contractor to carry out CONSTRUCTION, MAINTENANCE or REPAIR work;
(v rare unreasonable to employ)
2. Reas steps to check COMPETENT; and
(eg references and enquiries)
3. Reas steps to CHECK work properly done.
(depends on specialist knowledge required)
e.g. **repairing lift**, can't reas check
e.g. cleaner left step slippy, can check
129
Defences against visitors under OLA?
In this context, would this be valid notice to establish consent:
- "all visitors enter at own risk"
Consent, con neg and exclusion notices
(nb exc notices diff to warning notices)
No - (relates to consent) - not precise to risk (so can't have willingly accepted)
(eg contributorily negligent if fell when running / not looking where going)
130
1984 OLA - who is a bit unobviously covered by the Act (/not a visitor)?
(nb 1957 Act is visitors and 1984 is trespassers - think of as more tolerant w age)
- exercising private right of way
- enter via access agreement / National Parks and Access to Countryside Act / Countryside and Rights of Way Act
(nb they aren't considered trespassers even tho covered by act)
131
which category of people are outside protection of both OLAs?
**public** right of way
(eg highway)
but if that right of way is maintainable at** public expense**, duty of care imposed by Highways Act 1980
(private right of way covered by trespassers act)
132
Requirements for duty of care to be owed from occupier to trespasser?
General considerations?
1. **AWARE** of danger or **reasonably** grounds to be
(eg not liable if didn't know poisonous berries)
2. Reas grounds victim is / could become in **VICINITY of DANGER**
3. In **circumstances**, reasonable offer some PROTECTION
AVP
Re reasonable to expect, consider:
- expect adult vs children
- deliberate vs inadvertent trespassers
(more likely satisfy inadvertent)
- obvious/seriousness of danger?
- cost/practicalities precautions
133
Liability towards trespassers:
1. what would D be be liable for? (e.g. personal injury/damage to property etc)
2. liable for state of premises?
1. Death or PI only
2. Yes - but only that
STATE lol
(eg used shotgun against trespasser, injured, use negligence not OLA bcos not arising out of state)
(or diving into shallow pond - own reckless concduct causied injury)
134
What standard must occupier meet to trespassers/those covered under OLA 1984?
Reasonable occupier
( in circumstances to ensure doesn't suffer injury due to state premises)
Consider things like nature of premises/danger, age, extent of risk, precautions, foreseeability of trespasser etc
^ same as other OLA i guess !
135
Defences available where trespassers under OLA?
Which can't u use!
YES:
Consent
(eg aware of risk of driving into swimming pool and willingly accepted)
Contributory negligence
NO:
**NO exclusion clauses**
NO illegality
(although not all trespassers are illegal, a lot are, so would be relatively pointless to have Act if could rely)
136
Requirements to show manufacturer owed duty of care? case name lol
Explain the easy to explain parts
Donoghue v Stevenson
1. D is manufacturer
2. C is consumer
(purchaser AND anyone D should have in mind)
(e.g. car manufacturer to other road users)
(e.g. flat mate)
3. Item was a product
(covers pretty much anything which can cause damage/covers labels etc)
4. intermediate inspection UNLIKELY
(ie is intermediary expected to carry out inspection?)
e.g. sealed opaque bottle
e.g. hidden defect
- manufacturer not liable if warns to test before use
(so wide lol)
137
who counts as manufacturer for purposes of product liability?
are suppliers ever liable?
anyone who works on product before reaches consumer
interp widely
includes
- **repairers** and **installers**
(guess they are the intermediaries!)
inc suppliers if:
- **aware** of defect/danger; or
- cos of circumstances should **check/test**
(eg manufacturer told to test)
(eg duty to check steering if common cos car's age, and serious consequences if don't)
(suppose all have involvement more than just selling to u ^^^!!!)
138
will manufacturer be liable for product defect if expected examination to take place but examination did not/would not reveal defect?
yes will be liable
for being s,,
1lly
139
what types of losses are recoverable under product liability?
ie D v S
(and which aren't)
personal injury or damage to property due to the defect
pure economic losses aren't
- so can't recover:
a) reduced value; or
b) cost repairing/replacing
(remember as D v S is old case and PEL feels like an old rule cos spartan was HL lol)
eg toaster catches fire, spreads to kitchen, burns hands
- can recover for PI and kitchen
- can't recover for new toaster
140
Can Claimant rely on res ipsa loquitur in product liability cases?
Can they rely on anything else?
No
(causes issue for claimants as don't know what went wrong in manufacturing process)
But courts **willing to infer **liability
- must bring facts which courts can infer from
(unlike res ipsa)
Then like res ipsa D can rebut
eg prove presence of a chemical in the factory and in the underwear, but not a specific problem in process - courts inferred would not have been present if reas care
141
What may stop finding but for in context product liability?
Lapse of time
e.g.
windscreen shattered 12 months after fitted - likely something else
142
What defences apply to product liability?
Explain each briefly.
Consent
- if continue using after, may consent - only if willing acceptance + knowledge
Exclusion clauses
- no PI/death but yes if reasonableness/fairness (UCTA/CRA)
Contributory negligence
- try if can't show consent
- eg hammer loose, brand new so though imagined it, continue using - con neg
143
Who can sue under Consumer Protection Act?
Anyone who can show
- suffered damage
- due to defect in product
**not just buyer / no need forseeable**
eg
child of woman in Sainsbury's with explodable water bottle
144
Consumer Protection Act
(ie product liability even if not consumer)
What can be claimed and what is the minimum £ value £ to bring a claim?
*this caught me out in SBAQ*
- death and PI unlimited
- damage to personal property: **£275 **and over
- damage to **business property**
(eg violin used for business)
(since it's CONSUMER ra!)
- can't recover replacing or repairing (pure economic)
145
How does but for test differ for Consumer Protection Act and negligence claims?
CPA - must show that DEFECT caused damage
Negligence - must show breach caused
146
What is classed as defect to be able to sued under Consumer Protection Act?
(ie product liability w/o being the consumer etc)
**Unsafe**, not simply defective
(nb: neg can be if defective, even if not unsafe)
consider safety entitled to expect in circumstances, eg:
- **age** of product
- any **warnings**/instructions
e.g.
- defective as consumers entitled to expect blood free from viruses
- even though no tests were available to test blood
(more onerous for D under CPA - goes beyond reasonable care)
(nb: negligence - can bring claim if defective, even if not unsafe)
147
Who can be liable under Consumer Protection Act?
- manufacturer
(if component part is faulty, manufacturer of whole AND part liable)
- own-brander
ie put name on goods produced by others
e.g. M&S do this
- importer
(if product from outside UK)
big risk for them!
- 'forgetful supplier'
who can't meet victim's request for who was before them in chain of supply
(otherwise, supplier not liable)
148
Is liability strict or normal under Consumer Protection Act?
Strict
So fault of manufacturer irrelevant
e.g.
- infected blood case: liable even though couldn't have tested/known
(so better for claimants in terms of proving fault))
149
Can defendant exclude liability under Consumer Protection Act?
Nope ! Never !
(think of it as UCTA/CRA are acts which apply to common law, not acts which apply to other acts!)
150
What defences are available under Consumer Protection Act?
1. complied with legal requirements
- and defect inevitable result of compliance
(so it is fault of compliance requirements, not D!)
📜
2. D never supplied it
(eg thief stole it from factory)
🥷
3. supplied outside of course of business
(eg Hannah gave pjs to me)
👯♀️
4. defect did not exist when supplied it
(as proves caused by misuse or wear and tear)
🫵
5. Developmental risks
(Amy) 💉💊
- highest state of knowledge in world amongst producers at time was that could not have known about risk or discovered it
(e.g. blood case - risk known but nothing could do about it)
6. con neg
(e.g. leaves electric blanket on when goes out) ⚡️
151
What defence can manufacturer of PART of a product rely on under Consumer Protection Act?
Defect arose from:
- finished product's design or
- their own compliance with instructions of main manufacturer
(so main manufacturer told them to do it in certain way)
152
Can claim be commenced under CPA and negligence
Yes
But can only recover damages once for same loss
153
Difference between private and public nuisance?
(inc definition of private nuisance, is pretty specific)
Public nuisance
= protect public in exercising public rights
e.g. roads
Private nuisance
= interference with someone's use and enjoyment of land or rights have over it
- which is unlawful
154
Who can bring public nuisance claim?
Usually Attorney General
But individual can
(eg stall holder in the SBAQ question)
155
3 types of interferences within private nuisance?
1. Direct physical injury to land 🤜🏔️
(ie property damage)
2. Encroachment on land 🪳
3. Quiet enjoyment 🤫😴
(aka loss of amenity / comfort)
156
Explain quiet enjoyment of land in private nuisance?
inc examples
- wide
eg smells, dust, noise, vibrations
- covers rights over land eg right to light
- if courts can find encroachment or property damage instead, they will
- must be ordinary comfort, not dainty and elegant modes of living, so:
- not a loss of view or modern luxuries eg disruption to TV
157
When 2 terms describe when interference be unlawful (private nuisance)?
Will interference ever be found automatically?
SUE
must be **SUBSTANTIAL** and **UNREASONABLE** interference
**Encroachment** found automatically
eg overhanging tree branches
Otherwise, expect certain amount noise etc part and parcel life
(mo gowd)
e.g. lorries loud noise at night in rural location, fitted with anti-noise technology - because night / location - likely liable
158
Relevant factors to finding unlawfulness (private nuisance)?
Are any of them conclusive?
None conclusive / balance interests
1. **DURATION** and **FREQUENCY**
- always happening?
e.g. Dvdsons
- isolated only if relates to continuing state of affairs on D's property (unlikely)
2. **EXCESSIVENESS** of conduct / extent of **harm**
- physical damage likely excessive
(e.g. wall)
- impact on Cl?
(eg loud at hours when at work)
(eg dog barking)
3. character of **NEIGHBOURHOOD**
(sep card)
4. **PUBLIC** benefit
e.g. smelly shop
- rarely relevant
(court's not sympathetic)
- more imp re injunctions
5. **MALICE**
- sole purpose of annoying Cl = not reasonable
- likely to tip in Cl's favour
159
What type of interference will likely to be found excessive and therefore bring strong claim in private nuisance?
Physical damage
Unless it is trivial
160
How will character of neighbourhood impact unlawful/lawfulness?
What must claim relate to?
When are D's activities not considered?
(private nuisance)
Courts only consider if claim relates to personal discomfort or inconvenience, **instead of physical damage** (not rly relevant to physical dam anyway)
(city expect more noise / countryside expect more smells)
courts USUALLY consider D's activities
(this would benefit D - eg yes they made noise but because owned factory)
HOWEVER, will **not consider D's activities** (and therefore reasoning) if:
- breached planning permission; or
- can carry out activities without committing
(tricky point but basically means D's activities could provide justification for nuisance - but either of those 2 apply - don't consider D's reasons and just whether it is out of character of locality)
161
Does abnormal sensitivity indicate D's interference was unlawful?
(private nuisance)
e.g. orchids weirdly sensitive and damaged easily
No has no bearing on D's unlawfulness
Sounds like a claimant problem if your orchids are damaged because abnormally sensitive
(but if interference would have damaged ordinary more robust plants - then can establish)
162
Who can sue in private nuisance?
Must have exclusive possession (ie proprietary interest)
i.e. owner-occupier and tenant
(children of owner-occupier/hotel guests etc do not have a right)
163
Who can be liable in private nuisance?
1. CREATOR of nuisance
(even if no longer occupy the land)
- if can't find, can sue current occupier
2. Occupier
- always if they created
- some other instances sep card
2. landlord
regardless of if they created it)
164
When will occupier be liable for actions created by other people/things in private nuisance?
created by:
a) employee in course of employment
b) independent contractor
- and risk is inevitable due to work doing
(eg noise from demolition)
c) visitor, trespasser or predecessor in title or natural events
WHICH (!!) D has continued or adopted
- adopt if make use
- continue if ought know exists but don't take reasonable steps
(can consider D's resources - unlike in neg)
e.g.
- trespassers created a pipe in D's garden w/o D's consent
- D then used it drain water
- flooded into Cl's garden - Cl could claim
165
General rule and exceptions on landlord liability in private nuisance?
GR = no
Exceptions:
1. expressly or impliedly authorised due to it being INEVITABLE
e.g. let for purposes of go-kart club = noise inevitable
🏎️
2. nuisance existed at START of letting and ought know about it
🏁
3. LL covenanted to repair, fails to, failure causes nuisance
- BUT liable may ALSO be liable
166
can u use priv nuisance to claim for
- pi
- physical damage to crops/plants
- physical damage to personal property
- consequential losses where nuisance been established (give example)
no
(tort against land not person)
yes
(classed as part of land)
unlikely
yes
e.g. loss of profits where nuisance prevents operating normally
167
Valid defences for public and private nuisance claim?
Explain
(there are 6)
1. Prescription
- if been actionable by D 20 years
(rare - must have had right to bring claim whole 20 yrs)
2. Implied statutory authority
(e.g. law gives right to build oil reserve)
3. Necessity
- danger LIFE and LIMB
- and reas actions
- unless D negligent in making situ
e.g. letting oil tanker pollute water OK cos saved crew
4. Consent
(knowledge and willing acceptance)
5. Contributory negligence
(carelessness contributed)
6. Acts of god/natural events
- only if D has not adopted or continued
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INEFFECTIVE defences to public and private nuisance claims?
(nb not relevant to injunctions as a lot of these factors considered re whether grant injunction)
1. claimant bought property with eyes open 👀
eg buy next to factory
- can still bring claim, even tho knew about issues when purchased
(can't be petty and say I got here first !)
2. D's activity has **public benefit**
e.g. a chippy
sorry di ! the band is a benefit !
3. Others contributed towards nuisance
wasn't JUST me ! 🤷♀️
4. Planning permission (dian u are not risk free)
- being granted PP does not legitimise a nuisance
e.g. DD - excessive noise - could not use having PP as defence
169
When may having planning permission help a defendant in claim for private nuisance?
Re locality and character of area
Can use to argue that granting of PP changes character of neighbourhood
Now live in area where can expect noise etc to be greater
Also if PP stipulates permitted levels of noise etc - would be relevant
BUT NOT A DEFENCE TO PRIV N
170
Which 3 remedies are available for claim in private nuisance?
1. Damages; and/or
2. Injunction; and/or
3. Abatement (i.e. self-help)
(DIA...ne)
(And it was bate) (needing self-help)
171
What are 2 possible things may court provide damages for in nuisance?
Explain what would cover.
Yes but limited
Can award for:
1. Physical damage to C's land
- reflect cost of repair
- if can't, loss in value
2. Personal discomfort
- harder to assess
- consider loss of value due to loss of amenity
(will likely want injunction too here)
172
3 types of injunctions available in nuisance claims?
Explain in brief what they are (not requirements)
1. Prohibitory
- D forbidden from doing something
2. Mandatory
- D must take positive action to rectify
3. 'Quia timet' (rare)
- where anticipate tort, but not yet committed
(so usually prohibitory or mandatory are once committed, but if granted quia timet, it is before)
PMQ prime mins Qs may provide remedy!
173
Requirements for quia timet injunction?
(preventatory remedy to nuisance claim)
1. C almost CERTAINLY incur damage without; and
2. IMMINENT risk; and
3. D will only stop if court order
174
nb in all areas (tort/land/trusts etc) injunctions are an equitable remedy so court discretion
also damages must not be adequate
175
Can court award damages for FUTURE loss in private nuisance?
Only if providing damages in lieu of injunction
(would be compensation for future loss where no injunction because damages adequate)
eg won't stop the go kart business operating so u can have damages for that future loss instead
176
What will court consider in exercising discretion for damages vs injunction for nuisance claim?
- money adequate compensation
(consider if damages are small and quantifiable and injunction oppressive)
- public interest
(e.g. injunction risks jobs)
- nuisance authorised by planning permission
(damages more likely)
177
What is abatement remedy in private nuisance?
Victim can remove interference if give prior notice
No need prior notice if can remove without entering land or if emergency
If remove property of D, need to return
e.g. cut down tree which hangs over garden, return branches once cut
178
can D be liable if exercised reasonable care in private nuisance?
yes
because Q is whether D's use of land was reasonable
not whether D exercised reasonable care
179
What is rule in Rylands v Fletcher?
(explain each)
Strictly liability (regardless fault) if
Cl had exclusive possession of affected land, and:
1. brought something onto their land for own purposes which *likely cause danger* if escapes
- eg electricity, fumes, sewage, cattle
(regardless of if non natural)
2. It has escaped
(eg water flooded)
(nb not fire if caused by something else eg tyres)
3. Non-natural use of land by D
i.e. extraordinary or unusual
e.g.
- normal industrial purposes = natural
- factory producing bikes = natural
- producing explosives = not
4. Claimant suffered foreseeable harm
(same remoteness principle as Wagon Mound)
180
Defences to rule in Rylands v Fletcher?
1. Escape caused by stranger taking unforeseeable action
2. Unforeseeable acts of god
(eg released because earthquake)
3. Statutory authority
(same neg)
4. Consent
(same neg)
5. Contributory negligence
181
How do rules on who can sue/be sued, types of damage recoverable, defences and remedies apply for Rylands v Fletcher?
Same
Does this mean same as priv nuisane
e.g. cannot CLAIM FOR PERSONAL INJURY
(some other defences tho see sep card)
182
What is public nuisance?
(two elements)
1. Unreasonable conduct impacting reasonable comfort and convenience of public; AND (!)
- must impact sufficiently large amount of public
e.g. restaurant fumes impact neighbours most, but also whole village - could bring claim
e.g. ^ in remote countryside so only 3 people impacted, no claim
2. Claimant suffered particular harm (above rest of public)
- ^ assuming individual bringing instead of AG
e.g. loss of profit/property damage
183
why may claimant sue in public nuisance instead of private / R v Fletcher?
- claim for personal injury
- doesn't have to have proprietary interest
- can be liable for isolated events
- not limited to interfering with enjoyment of land
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