TORT Flashcards
1
Q
‘An employer’s duty to its employees is personal and non-delegable.’ What does this mean?
A
The employer is held legally responsible when a contractor it employed is negligent.
2
Q
Define negligence.
A
The breach of a legal duty to take care which results in damage, undesired by the defendant to the claimant.
3
Q
How to deal with claim of negligence?
A
- Identify parties to the claim.
- What was the damage/loss suffered?
- Was a duty of care owed to C by D?
- Was there a breach of that duty by D?
- Can you establish causation? I.e., a novus actus broke the chain, and must have been unforseeable.
- Remoteness? Was the damage reasonably forseeable?
4
Q
Describe burden and standard of proof in negligence claims.
A
- The BofP is on C.
- The standard of proof is the balance of probabilities, i.e., more likely than not.
- Generally, there is no liability for an omission (exceptions).
5
Q
What is the ‘neighbour principle?’
A
- In negligence claims, there must exist a duty of care owed by D to C.
- In Donoghue v Stevenson, Lord Atkin coined this principle: A duty would be owed to anyone who could reasonably be conceived as being affected by one’s act.
- Case law: Established Duty Situations.
6
Q
Negligence
What are the Established Duty Situations?
A
- Doctor and Patient [Gillick v West Norfolk]
- Hospital and Patient
- Manufacturer and Consumer [Donoghue v Stevenson]
- Highway Users/Driver to Pedestrian [Nettleship v Weston]
- Employer and Employee [Wilsons & Clyde Coal Co Ltd v English]
- Parent/Guardian and Child [S2 Children’s Act 1989]
- Teacher and Pupil [in loco parentis CA ‘89]
- Participants in sporting events [Condon v Basi]
- Ds to Rescuers (if D creates dangerous situation) [Haynes v Harwood]
- Ambulance Service (duty to arrive on time) [Kent v Griffiths]
7
Q
Negligence
Discuss police and duty of care.
A
- There is no general duty on police to individuals .
- Instead they have a duty to protect public as a whole. [Hill v Chief Constable of West Yorkshire]
- Exception: where police have an implied duty of care for someone they are responsible for [Brookes] [Kirkham]
8
Q
Negligence
Explain Caparo V Dickman duty.
A
- This case further developed neighour principle/Triparte test:
- Was it reasonably forseeable that D’s failure to take care could cause the type of loss suffered?
- Was there a relationship of proximity between C and D?
- Is it fair just and reasonable, in all the circumstances, that the law should impose a duty of care on D? (policy concerns)
9
Q
Caparo v Dickman
Was it reasonably forseeable that D’s failure to take care could cause the type of loss suffered?
A
- The objective reasonable man test is used.
- Only the particular type of loss that has occurred needed to be forseeable, NOT that that loss would be suffered by C.
- Miscarriage after hearing bike crash nearby not forseeable. [Bourhill v Young]
- It can be forseeable that rescuers will try to assist, and consequently suffer personal injury. [Haynes v Harwood]
- It was forseeable that if young offenders were left unsupervised, they might cause property damage [Home Office v Dorset Yacht]
10
Q
Caparo v Dickman
Was there a relationship of proximity between C and D? (CONTROL)
A
- Police had care and control over D and were consequently reponsbile for D’s actions. [Home Office v Dorset Yacht]
- Police held to have a duty to take reasonable steps to assess the suicide risks of all prisoners in custody, inc those with unknown mental illness. [Reeves v MPC]
11
Q
Caparo v Dickman
Was there a relationship of proximity between C and D? (ASSUMPTION OF RESPONSIBILITY)
A
- ECofHR held that the police ‘knew or ought to have known…of the existence of a real and immediate risk to life of the identified individual.’ [Osman v UK] Police failed to take reasonable steps in their power to protect the individual.
12
Q
Caparo v Dickman
Was there a relationship of proximity between C and D? (CREATION OF A DANGEROUS SITUATION)
A
- Courts look favourably towards rescuers when imposing a duty of care [Haynes v Harwood]
- A duty to abate a danger will only be owed if the danger is known or forseeable. [Smith v Littlewoods]
13
Q
Caparo v Dickman
Was there a relationship of proximity between C and D? (SPECIAL RELATIONSHIP)
A
- A pre-existing contractual relationship between the parties will be sufficient to create proximity. I.e, a decorator owed a duty of care to the homeowner not to leave the property unsecured. [Stansbie v Troman]
14
Q
Caparo v Dickman
Is it fair, just and reasonable in all the circumstances to impose duty of care of D?
A
- Policy concerns: over-defensiveness, floodgate of litigation, resources.
- Deemed unfair to impose duty where D is a non-profit organisation. [Marc Rich v Bishop Rock Marine]
- Where threat of liability would lead the police to adopt defensive practices. [Hill v CC of W Yorkshire]
15
Q
Duty of Care PH
Define psychiatric harm?
A
- PH is defined medically, not legally: a “positive psychiatric illness.” [McLoughlin v O’Brian]
- Must be a medical condition; grief and sorrow is not enough [Alcock] - for floodgate reasons.
- Depression qualifies [Chadwick]
- Physical injury or illness brought on by shock qualifies [Bourhill v Young]
- Miscarriage and heart attack qualifies
16
Q
Duty of Care PH
Discuss forseeability and primary victims.
A
- PVs are those worried about themselves.
- If some kind of physical harm is forseeable, the claim will be allowed; AND
- The court will take into account the “egg shell” test. [Page v Smith]
17
Q
Duty of Care PH
Discuss forseeability and secondary victims.
A
- SVs are those worried for someone else.
- This claim will only be allowed if PH is forseeable.
- Apply the Alcock test: a) would a person of normal fortitude have suffered PH? b) was there a close tie of love and affection? c) SV in proximate time and place? d) did SV directly perceive the incident?
18
Q
Duty of Care PH
What is the status of people who suffer PH as a rescuer?
A
- More than bystanders
- But not in actual danger
- No special status for rescuers
- Courts will define narrowly
19
Q
Duty of Care Pure Economic Loss & Negligent Mistatement
What can economic loss result from?
A
- A negligent mistatement. Recoverable under Hedley v Heller.
- A wrongful act/omission. Irrecoverable unless they involve actual or consequential damage.
20
Q
Is pure economic loss recoverable?
A
PEL unconnected to any physical damage is generally not recoverable.
21
Q
Duty of Care PEL
What are the broad categories of loss?
A
- Actual (e.g., cost of new car when involved in a crash)
- Consequential (e.g., lost earnings when recovering from crash)
- Pure (e.g., lost employment for those caught in the tailback resulting from crash)
22
Q
Duty of Care PEL
What can C claim in tort? PEL
A
- C can only claim for damage, not for a product that is defective, in tort.
- A dangerous defect which manifests itself before causing any physical harm is PEL and thus irrecoverable [Murphy]
- C can only recover if he has a proprietary interest in the damaged property.
- Claims that undermine contract law will be denied.
23
Q
What is required to allow PEL to be recoverable arising from negligent mistatement (i.e., Hedley v Heller principles)
A
- A special relationship between the parties.
- A voluntary assumption of responsibility by D; AND
- Reliance by one party upon the advice of the other. C’s reliance must be reasonable [Howard v Ogden]
24
Q
Negligence: Standard of Care
What are the 2 standards of care in breach of duty?
A
You must SET the standard that D is expected to reach.
1. The reasonable man test [Blythe v Birmingham]: An objective test is used. (Think Nettleship v Weston: a learner driver should reach a standard of a competent driver, EXCEPT where the driver suffers a sudden and unexpected disability i.e., a heart attack.)
2. The professional standard [Bolam v Fiern Hospital]. A lower standard will apply to children [Mullin]. Factors taken into account: a) expertise b) common industry practice can still be negligent c) current state of knowledge d) emergencies.
25
Once shown that D has breached standard, how will you consider if there has been a breach?
Consider these factors:
* Seriousness of the potential harm
* Magnitude of the risk
* Social benefit
* Level of precaution taken
* Practicality of taking precautions
26
How will C prove that the breach CAUSED the damage on the civil standard?
* The civil standard: on the balance of probabilities.
* RES IPSA LOQUITUR: The thing speaks for itself. I.e., in the absence of any direct evidence as to how D actually behaved as to cause the loss, causation can be inferred from the facts, IF the injury is of the kind that does not normally occur without negligence. (STRAIGHTFORWARD CASES ONLY)
27
# Negligence
Discuss FACTUAL CAUSATION
BUT FOR D'S ACT/OMISSION, WOULD C HAVE SUFFERED THE DAMAGE ANYWAY?
If 'yes', then D's act was the factual cause of C's damage.
28
# Negligence
Discuss FACTUAL CAUSATION where there are multiple CONCURRENT cases.
1. MATERIAL CONTRIBUTION TO RISK OF HARM. Strictly limited to cases concerning areas of scientific uncertainty, like MESOTHELIOMA.
2. MATERIAL CONTRIBUTION TO HARM. It need not be the only cause, but it must be reasonably substantial.
29
# Negligence
Discuss position where there are multiple CUMULATIVE cases.
* I.e., causes which each build up the overall level of damage, APPORTIONMENT is used. But this is only if the harm is DIVISIBLE. (Remember Holtby Asbestos and Rahman blindness in one eye).
* Where the harm caused is INDIVISBLE, C can bring action against any one of the Ds whilst also seeking equitable contribution from other D under Civil Liability (Contribution) Act 1978. Note: only entitled to one single lump sum.
30
# Negligence
How do you establish LEGAL CAUSATION?
1. Is there a NOVUS ACTUS INTERVENIENS which breaks the chain of causation? (Were the acts of C unreasonable, i.e., look at C's own actions). Suicide will not generally break the chain of causation, as it is not a truly voluntary informed decision.
2. Any acts of a third party must be UNFORSEEABLE in order to break the chain of causation. [Scott v Shepard: actions made in the heat of the moment don't break the chain] [Robinson: medical treatment must be 'palpably' wrong to be NAI] [Home Office v Dorset Yacht: the high degree of control prevented actions from being NAI] [Haynes: D caused the danger].
31
# Negligence: Remoteness of Damage
How do you establish how much of the damage D is liable for?
1. The test of reasonable forseeability (type of damage and full extent of damage)
2. The eggshell skull rule - D takes C as he finds him. (risk of damage: as long as the type of damage is forseeable, even if chances are minimal, compensation can still be recovered.
32
# Negligence
Discuss General Defences: Volenti
1. VOLENTI NON FIT INJURIA: no harm can be done to one who consents.
2. This is a complete defence.
3. Apply Nettleship: a) agreement to the risk, expressly or impliedly; b) full knowledge of the nature and extent of risk; and c) voluntary decision by C: consent must be freely given (check employers; rescuers and suicide 50/50% damages).
4. NOTE: UCTA; An exclusion on the liability for death or personal injury arising from negligence will not be effective.
33
# Negligence
Discuss General Defences: Illegality
ex turpi causa non oritur actio:
no action may be based on an illegal cause
To apply: the injury must have been caused by the illegal act = complete defence.
34
# Negligence
Discuss General Defences: Contributory Negligence
Governed by s1(1) Law Reform (Contributory Negligence) Act 1945
= partial defence
1. Was C acting negligently?
2. Did C's actions contribute to the damage suffered?
3. To what extent should C's damages be reduced?
Exam tip: a child cannot be CN.
35
# Vicarious Liability
What are the 3 essential elements to establish VICARIOUS LIABILITY?
1. a tort was committed (any except for nuisance);
2. by an employee;
3. in the course of employment
[Various Claimants v Catholic Child Welfare]
36
# Vicarious Liability
Employment Relationship: Discuss
* D must generally be an employee, and not just a contractor [Barclays Bank]. Use [Ready Mixed Concrete] test if not obvious: a) remuneration b) control c) other contractual provisions
* Is the relationship "*sufficiently akin to that of employer and employee*?"
37
# Vicarious Liabilty
Expand: Was the tort committed in the course of employment?
...the wrongful act is
a) expressly or impliedly authorised by the employer, or
b) incidental to the carrying out of the employee's proper duties, or
c) an unauthorised way of doing something authorised by the employer
38
# Vicarious Liability
When will an employee's act not be in the course of employment?
Look out for an act which is "*a frolic of his own*." (check extent of employee's deviation and purpose).
* Express provision: employer generally not liable where an employee has acted contrary to an express provision.
* Does the deviation from an authorised route constitute a new and independent journey?
* [WM Morrison Supermarkets] the employers were liable for data breaches caused by a disaffected employee.
* [Lister] criminal acts were generally not thought to be in the course of employment. H/W: Concentrate on the *relative closeness of the connection*. Warden SAd at children's home - employer was VL.
39
# Vicarious Liability
Can an employer who is VL claim an indemnity?
Yes, they can claim an indemnity from the employee who committed the tort [Lister] and Civil Liability Act 1978.
40
# Employers Liability
What duty of care applies?
[Wilson & Clyde Coal] Employers owe a duty of care to provide:
a) competent staff
b) safe premises and equipment
c) safe systems of work
This duty is "*personal to the employer*" and non-delegable.
* [Woodland v Essex] reasonable care must be taken; liable for negligence of independent contractors on premises.
41
# Employers Liability
Duty to provide reasonably competent fellow employees. Expand.
If they ought to know or do know of the risk, they may be liable.
Look out for:
* selection of staff
* provision of training
* supervision if necessary
* dismissal of employees who continue to pose risks to fellow staff
42
# Employers Liability
Duty to provide reasonably safe premises, equipments and systems of work. Expand.
Even if the equipment is faulty due to a 3rd party, the employer is still liable.
* E must devise a safe system of work and take reasonable steps to ensure it is complied with.
* The duty arises even for PH [Hatton v Sutherland; the work-related pyschiatric illness must be reasonably forseeable].
* [General Cleaning] Even where employee accesses E's premises outside of employees' working hours, E is liable if injury.
Look for (in inadequate plant):
1. wear and tear
2. lack of servicing and inspection
3. lack of safety devices
4. inherent defects
43
# Employers Liability
Describe Hatton guidelines.
...as to whether injury through stress was reasonably forseeable:
1. nature and extent of work by employee.
2. signs from employee.
44
# Employers Liability
What is the standard at which E is assessed when establishing breach?
= that of a reasonably competent employer, providing reasonable care in all the circumstances.
[Latimer] Standard is objective.
[Paris v Stepney]: Higher degree of care.
Has E failed to take reasonable care in the circumstances as a reasonably competent employer would?
Consider:
1. magnitude of risk
2. cost and practicality of precautions
45
# Employers Liability
Implications of Health & Safety At Work etc Act 1974?
1. Imposes higher standard of care than that at civil law.
2. Breach is a criminal offence.
3. Likely to be regarded as the guide to standard of care.
4. Strict liability.
CONSIDER reform: s.69 Enterprise & Regulatory Reform Act 2013.
* What risks ought the employer have foreseen?
* What precautions ought the employer have taken in response to those risks?
46
# Employers Liability
Can any damage that is reasonably foreseeable be recovered by C?
Yes, Wagon Mound 1 applies. C can cover for: a) assaults at work [Rahman] and b) psychiatric damage including stress-related problems if E was aware of the problem.
47
# Product Liability
C is affected by a defective product. What are the 3 potential causes of action?
1. Breach of Contract (think s9 CRA - Unsatisfactory quality)
2. A claim under the CPA 1987 (damage caused by defect)
3. Negligence (i.e., breach of duty: think personal injury and consequential property damage, but NOT pure economic loss)
48
# Product Liability
C claims under breach of contract. Expand.
1. Is there a contract between C and D? C must be the buyer of the defective product and only the supplier can be D.
2. Has there been a breach? --> Terminate and claim damages putting C in position had the contract been fulfilled [I.e., Hadley v Baxendale]
49
# Product Liability
C claims under CPA '87. Expand.
Remember C must show that they have suffered damage caused by a defect in the product.
* This is a tort of strict liability (do not consider remoteness) H/W, C must prove there was a defect, even if not necessary to prove D was at fault.
* Includes personal injury and damage to private property over £275, but NOT damage to commercial properties or pure economic loss [Murphy v Brentwood].
* [Re Polemis] Direct consequences test.
* Is the product unsafe? This is strict liability, so a simple matter of whether it is unsafe according to the expectations of consumers [National Bloos Authority]
50
# Product Liability
C claims under CPA '87, is D liable?
1. Producers? Yes, i.e., manufacturers.
2. Branders? Yes, i.e., those who take another M's goods and rebrand them.
3. Importers? Yes.
4. Suppliers? Yes.
51
# Product Liability
C claims under CPA '87, do any defences apply?
CN applies as normal.
Other defences:
* the defect arising as an inevitable consequence of complying with the law.
* D did not supply the product in the course of business.
* Ordinary wear and tear or misuse by C.
* Industry 'state of knowledge' at the time. [Commission v UK] must be the highest possible state of knowledge available anywhere in the world at that time.
52
# Product Liability
C claims in Negligence. Expand.
* Remember usual duty of care/negligence considerations.
* Manufacturers owe a duty to take reasonable care to the ultimate consumers of their products (narrow rule from Donoghue v Stevenson).
* Look out for scenario where the product was tampered with before reaching the consumer (i.e., novus actus interveniens).
* Standard is that of a reasonable manufacturer who takes all sensible precautions, whilst bearing costs in mind.
53
# Product Liability
C claims in Negligence. Do any defences apply?
1. CN as normal.
2. Has the liability been excluded (other than death or personal injury)? Is the reasonableness test satisfied?
54
# Occupiers Liability
What does OLA '57 govern?
Liability for injuries to visitors (that is someone permitted to be on part or the whole of the premises).
55
# Occupiers Liability
What does OLA '84 govern?
Liability for injuries to non-visitors (usually trespassers)
56
# Occupiers Liability
How is 'premises' defined?
It is defined widely in both acts and can include buildings on land in addition to the land itself.
57
# Occupiers Liability
How would you identify the occupier/D? Include Wheat v Lacon situations.
The main test for whether someone is an occupier is whether they have a sufficient degree of control over the relevant premises.
[Wheat v Lacon]
1. Tenant is occupier if LL does not live on the property.
2. H/W if LL has only issued a licence, then they remain the occupier.
3. LL is the occupier of any areas over which they retain control (i.e., communal spaces such as stairwells, corridors etc.)
4. Occupier normally remains responsible where they have hired an independent contractor. If IC is not considered occupier, they can still be liable under ordinary common law negligence.
58
# Occupiers Liability
Establish which Act applies i.e., ask whether or not C is a visitor.
Those who are 'lawfully present' include:
1. **Express Permission**. This may be limited by area (they may become a trespasser [The Calgarth]); time and purpose [Robert Addie & Sons: has the visitor gone beyond the purpose for which they were invited?]
2. **Implied Permission**: Check occupier's behaviour.
3. **Contractual Permission**: Those present for fulfilling a contract.
4. **Lawful Authority**: Check for gas board officials.
59
# Occupiers Liability
What is the standard of the duty '57 Act?
An occupier owes all visitors the common duty of care i.e., a duty to "*take such care as is reasonable in all the circumstances...to see that the visitor is reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there*."
Contractors/builders will take their own precautions, H/W occupiers may be liable for failing to mitigate against risks outside the scope of their job.
A higher duty is owed to children. O is entitled to take parental supervision into consideration.
60
# Occupiers Liability
57' Act: Will a warning notice exclude O's liability?
* It is possible to discharge duty by providing visitors with adequate warning of danger BUT ONLY IF such warning was "*enough to enable the visitor to be reasonably safe*."
* WN not necessary if danger should be obvious to C.
* Remember UCTA reasonablness test.
61
# Occupiers Liability
'57 Act: Can O escape liability for acts and omms of an independent contractor?
They may escape liability if they acted reasonably in entrusting the work to an IC:
1. must demonstrate it was a reasonable decision to use an external contractor.
2. must demonstrate that it was reasonable to hire the specific contractor chosen.
3. must show adequate supervision was given to the IC as they carried out the work.
Look out for dangerous situations which required specialist skill/knowledge to identify; O could not reasonably be expected to supervise a broken lift shaft e.g.
62
# Occupiers Liability
'57 Act: Do any defences apply?
1. All normal defences apply
2. **Volenti:** O is not liable if visitor agrees to the risk. Visitor must have a genuine, free choice as to whether or not to assume the risk.
3. **CN**: courts will consider "*the degree of care and want of care, which would ordinarily be looked at in such a visitor*."
4. **Exclusion Clauses** O cannot exclude common duty of care; CRA 2015 cannot exclude liability for PI or death arising from N; H/W death and PI can be excluded if C entered for recreational purposes.
63
# Occupiers Liability
Is a duty owed by O under the '84 Act? Which 3 conditions must be met?
1. O must be aware of the danger, or have reasonable grounds to believe it exists.
2. O must know or RGTB the person is in the vicinity of danger.
3. Objectively, risk must be one against which, in all the circumstances, he may reasonably be expected to offer the person some protection.
Look out for trespasser swimming on a winter night: it is not reasonable for O to believe a trespasser would do this [Folkstone Properties].
64
# Occupiers Liability
What is standard O is assessed at under '84 Act?
If the 3 conditions are met, O owes a duty to take such care as is reasonable in the circumstances to prevent those on their land from suffering injury.
NOTE: Only PI is recoverable under '84 Act. Property damage is not recoverable.
65
# Occupiers Liability
Additional defences available to O/D under the '84 Act?
Illegality:
* For policy reasons (deterrence), those who enter onto land to commit crime may have their protection as trespassers revoked by the courts [Revill v Newbery].
66
# Private Nuisance
Define PRIVATE NUISANCE
"*An unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it.*" [Winfield] [applied in Read v Lyons]
67
# Private Nuisance
Does C have standing?
In order to sue, C must have a proprietary interest in the land (e.g., freeholders and tenants with exclusive possession [Hunter]).
NOTE: It is not sufficient to be a mere licensee.
Key features in PV claims:
* continuous or recurrent interference
* balance of interests (HRA)
* no requirement for escape
68
# Private Nuisance
Who can C sue?
1. creator of the nuisance, OR
2. the occupier of the land from where the nuisance has originated [Leakey v National Trust]: can the original creator be found? are they worth suing? did they know or ought to have known?
3. LL will only be liable if he created or authorised the nuisance expressly or impliedly by letting out the property [Tetley v Chitty go-kart club]
69
# Private Nuisance
Who can C sue instead?
1. Independent contractors UNLESS the nuisance was a reasonably forseeable consequence of what O asked them to do.
2. Previous occupiers.
3. Trespassers.
4. Natual condition of the land.
5. Visitors.
70
# Rylands v Fletcher
Discuss indirect and actionable interferences.
Remember the rule in [Rylands v Fletcher]
* case established a specific form of strict liability for certain type of indirect interference (think water, gas, fire).
* Must amount to a one-off escape if RvF.
* D constructed a reservoir on his land, and due to negligence by ICs, water escaped and flooded P's adjoining mine. HofL held D to be strictly liable even where no negligence on his part.
* SL = No need to prove negligence.
* D brought something onto their land; use of land was unnatural; substance escaped; damage was foreseeable.
71
# Private Nuisance
Which interferences are not actionable under Private Nuisance?
1. Disruptions to television signal [Hunter]
2. Anything that does not interfere with "ordinary comfort" [Walter v Selfe]
3. Impacting a view from your home [Alfred's Case]
72
# Private Nuisance
Discuss 'causing damage.'
* Damage must have occured.
* Only damage which is reasonably forseeable can be claimed for.
* It must be a reasonably forseeable type [I.e., Wagon Mound 1] even if exact way was not forseeable.
* C cannot claim for PI or damage to personal property in PN [Hunter]
73
# Private Nuisance
What are the 2 types of damage recoverable in PN?
1. Property damage
2. Sensible Personal Discomfort (interference with C's use or enjoyment of land). This can include noise, smoke and smells [St Helens Smelting "*anything that affects the senses or the nerves*."]
REMEMBER: The usual tests for causation apply.
74
# Private Nuisance
How will you/the courts assess if the interference is unlawful?
= "substantial and unreasonable."
* This is an objective standard (but remember Lord Wright "a balance has to be maintained")
Court will consider the following factors:
* *Character of the neighbourhood* [Sturges: factory in residential area was unreasonable]
* *Public utility* [Adams: public benefit should not interfere with private rights; fish and chip shop was a nuisance]
* *Time and Duration* [Bolton v Stone: continuous and/or regular]
* *Malice*. Malicious actions are always unreasonable. [Hollywood: malicious if only to annoy C].
* *Unusual, excessive or careless acts* [Matania: excessiveness is objective; extent of harm is subjective. Constant noise between 8am-5pm deemed excessive]
75
# Private Nuisance
Can C who is considered "abnormally sensitive" claim?
* AS C cannot claim for activities that would not interfere with an ordinary occupier.
* H/W if ordinary occupier would have been affected, AS C can claim for full extent of his abnormally sensitive damage [remember McKinnon: rare orchids died where ordinary flowers would have also died].
76
# Private Nuisance
Does D have a defence in a Private Nuisance claim?
* Volenti: complete defence.
* CN: partial defence.
* Statutory Authority: full defence. [Allen v Gulf Oil: statute authorised refinery but was silent on how it should operate. Noise and vibrations were impliedly authorised, so not nuisances] Allen test: 1. D must have exercised all due care; and 2. the nuisance caused must have been an inevitable result of the authorised activity.
* Act of God or Nature: Except where D adopts/manipulates or continues the nuisance himself.
* 20 Years' Prescription: 'Come to nuisance' is NOT an effective defence.
NOTE: planning permission is NOT statutory authority.
77
# Private Nuisance
What remedies are likely to be granted?
1. Injunction: Can be full or partial (only during certain hours e.g.,). Courts to take 'common sense' approach.
2. Damages in lieu of injunction: usually where nuisance is trivial or unpreventable. Discretionary: a) harm suffered is small. b) capable of being quantified in £. c) capable of being adequately compensated by damages.
3. Abatement: self-help remedy. BUT must give notice before entering land to take reasonable steps in stopping nuisance.
78
What is the definition of TRESPASS TO LAND?
* Intentional direct interference with the claimant's possession of land.
* It is actionable per se (i.e., C does not need to show that tangible loss flowed from D's actions).
* To fall within the scope, it must be DIRECT, not indirect.
79
# Trespass to Land
Who can sue?
C must have a proprietary interest in the land:
* proprietary landowners
* licensees with exclusive possession [Monsanto]
* squatters (unless someone has 'better right' to possession)
80
# Trespass to Land
What are the 6 elements that must be established by C to show TTL?
1. D entered C's land
2. As a trespasser
3. Direct interference
4. Land (including airspace above)
5. Intentional
6. Direct (it must flow immediately, and without intervenens, from D's actions onto C's land
81
# Trespass to Land
Discuss causation and remoteness.
* Ordinary rules apply
* ONLY DIFFERENCE: D is liable for ALL direct consequences of his tort, even those that are unforseeable.
NOTE: use Re Polemis, not Wagon Mound 1 as it is more stringent.
82
# Trespass to Land
Are there any defences?
* Justification/consent: D had express/implied permission to be on C's land; OR, permitted under law (e.g., police with warrant)
* Necessity
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# Trespass to Land
What remedies are available to C?
* Damages: To compensate C for any damage to their land; greatly reduced if there has been no damage to land (e.g., nominal of £5)
* Injunctions. In light of Art 8 ECHR, this might be limited
* Abatement
* Order for possession: in squatter cases
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# Remedies in Tort
What are the types of damages available?
1. Special damages: precisely calculated
2. General damages: no definitive figure can be placed
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# Non-fatal claims
Consider non-pecuniary losses.
## Footnote
[Kemp & Kemp]: Quantum of damages
1. **Damages for pain and suffering**: covers physical and mental anguish, EXCEPT where C was in a coma. C must subjectively be aware of his own pain and suffering.
2. **Damages for loss of amenity**: this covers anything related to a lower quality of life or ability to enjoy life. Tested objectively.
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# Non-fatal claims
Consider pecuniary losses.
1. **medical expenses**: covers anything reasonably incurred as a result of the tort. Can include private treatment.
2. **cost of care**: C can recover for any carer bills that result from the tort. Relatives who give up work to care for C may also be compenstated (but only up to amount that a commercial carer would have charged).
3. **loss of earnings (pre-trial)**: covers loss of earnings between date of tort and the trial.
4. **loss of earnings (post-trial)**: this is a lump which may need to be invested to provide C with income for the rest of their life. USE THE MULTIPLIER METHOD.
5. **loss of earnings (lost years)**: the years that C would have worked had his life expectancy not been shortened by the tort. [Pickett: reduced by 25% if married with children; or by 33% if no dependents].
6. **loss of earnings capacity**: C is able to work but is so damaged by disability that he is disadvantaged in the job market or unlikely to be promoted [Smith]. Typically 2 years of net lost earnings.
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# Non-fatal claims
How do you work out the multiplier method?
Actual period of loss from trial date - in years. USE OGDEN TABLES.
1. severity of injury
2. age of C
3. whether or not C had suffered any financial losses as a result of the accident
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# Non-fatal claims
How do you work out the multiplicand?
Net annual loss of earnings in £.
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# Non-fatal claims
Consider applicable deductions.
* tax and national insurance contributions.
* NEVER deduct for other insurance payments or money given to charity or family.
* pecuniary losses are reduced if state benefits are received for the tort.
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# Fatal claims
Which statutes apply? Discuss limitation periods.
1. C's estate can claim under **Law Reform (MP) Act 1934**. (Distributed by will or through intestacy): losses, property damage, reasonable funeral expenses. NO claims for: bereavement damages, or claims in defamation.
2. Any dependents can claim under **Fatal Accidents Act 1976**. Must have been financially dependent on deceased and on list. Apply Pickett reductions. Capped bereavement sums, reasonable funeral expenses and bank of mum and dad contributions.
3. There is a 3 YEAR LP for both acts.
