TORT Flashcards

Question

Difference between liability under Common Law in 2 cases 1. In public someone sees another about to walk over a cliff and fails to shout a warning 2 Occupier sees another about to walk over a cliff on premises and fails to shout a warning

Answer 1

2 Liability + as there is a degree of proximity between Occupier and V

Answer 2

Person needs permission from Occupier for purpose in question. Here not given =\> may cease to be a visitor =\> trespasser+ Quote Scrutton in The Carlgarth 1927 **"When you invite a person into your house to use the staircase, you do not invite him to slide down the stairs"** **OR** **Geary v JD Wetherspoon 2011 EWHC 1506** Slight difference: Claimant(-) She knew that sliding down the banisters was not permitted, but she chose to do it anyway. **She was therefore the author of her own misfortune**. The defendant owed no duty to protect her from such an obvious and inherent risk.

Answer 3

Gould v McAuliffe 1941 Held no notice on gate that private → landlord did not take reasonable steps to inform visitor of areas out of bounds. **_BUT_** no expectation to post notice in areas where no one would reasonably expect a visitor (lawful visitors are contractual entrants, invitees, licencees) to go.

Answer 4

(+) Glasgow Corp v Taylor 1922 Old case. Occupier here Corp must protect against alluring dangers, ex poisonous berries Child treated as **implied licencee** as no common interest (like friends invited to dinner)==\> duty to warn of any trap or concealed danger on premises && Occupier O had actual knowledge of such Principle: Higher duty of care is owed to children, now enforced by statute s.2(3)(a) OLA 1957 "Occupier must be prepared for children to be less careful than adults"

Answer 5

S1(2) A person who at common law would be treated as an occupier. sufficent degree of control over the state of the premises

Answer 6

Yes by displaying a notice on the premises or using a term in the contract

Answer 7

**Held** Since no legal action, farmer had given implied consent. → implied licensee →occupier has duty to warn licensee about any trap or concealed danger...(horse)→ occupier liable +

Answer 8

common law No common interest between occupier and entrant but implied or explicit permission to be there→ occupier has duty to warn licencee about any trap or concealed danger

Answer 9

Persons who enter premises to pursue common purpose with occupier

Answer 10

Common law highest standard of care entered premises based on terms of a contract

Answer 11

OLA 1957 The common duty of care to all the occupiers visitors.(includes common duty of humanity)

Answer 12

**Roles v Nathan 1963!** Held If danger ordinary part of claimants job, expected to protect against risks *JFK blown away in newspaper while chimney sweeps die in the Texas book depository. Imagine switching roles with shooter who was called Nathan Oswald*

Answer 13

Edwards v Rail Executive 1952 Held RE had taken reasonable steps →liable(-)

Answer 14

**Robson v Lallett 1967** Trespassers (-) Reasonable opportunity must be given for person to leave before they become T

Answer 15

**White v Blackmore 1972** Volenti non fit injura defence will only succeed if vIsitor aware of risk and has a genuine, free choice to agree to it. Here based on poorly constructed barriers had not agreed to that (level of) risk. → CoC broken (-) ? → race organiser= occupier liable (+) But, if the organisers fail to take reasonable precautions, they cannot excuse themselves from liability by invoking the doctrine ofvolenti non fit injuria: for the simple reason that the person injured or killed does not willingly accept the risks arising from their want of reasonable care, ALT no-one liable?

Answer 16

Contractor liable (+) Haseldine v Daw 1941 Situation where considerable technical expertise needed to check work ex here after a lift repair && reasonable for occupier to entrust sich work to an expert contractor → Occupier may NOT be liable Variant NO technical expertise required and Occupier does not check work Woodward v Mayor of Hastings 1954 Occupier act not reasonable → liable(+)??

Answer 17

Phipps v Rochester Corp 1955 Council or Corp liable (-) Occupiers are entitled to assume that young children are normally going to be supervised by an adult, Distinction between big and little children. **Variant** ⇒ Big child falls down a hole on wasteland, also unsupervised.

Answer 18

Contractor(+) **AMF v Magnet 1968** Not in sense of expert work and reasonable for occupier to have that work carried out by An expert (Hasledine v Daw 1941-distinguished?) **BUT** Large development work gave contractor control over premises.

Answer 19

Phipps v Rochester Corp 1955

Answer 20

R v Smith and Jones 1976 When person goes beyond purpose for which they are invited → permission to a visitor negated. Similar to The Calgarth 1927 **Variant** a child not having permission to be in parents house? (Visitor = invited?) Pnemonic *Smith and Jones on stolen TV. Me in picture.*

Answer 21

Roles v Nathan 1963! Held If danger ordinary part of claimants job, expected to protect against risks *JFK blown away in newspaper while chimney sweeps die in the Texas book depository. Imagine switching roles with shooter.*

Answer 22

Edwards v Rail Executive 1952 Held RE had taken reasonable steps →liable(-)

Answer 23

**Robson v Lallett 1967** Reasonable opportunity must be given for person to leave before they become T (here (-)) → Trespassers (-)

Answer 24

White v Blackmore 1972 Volenti non fit injura defence will only succeed if vIsitor aware of risk and has a genuine, free choice to agree to it. Here based on poorly constructed barriers had not agreed to that (level of) risk. → CoC broken (-) ? → race organiser= occupier liable (+)

Answer 25

(+) Harris v Birkenhead Corporation 1976 Council had a legal right over property → responsibility as occupiers (+) Where a tenant vacates property, after the service of a notice of entry upon him, the local authority will thereafter be the occupier. G owned a house which was let to R. The local authority served a notice of entry on G and R. R subsequently left the house without giving notice to the local authority. The local authority were aware that once houses in that area became vacant they were vandalised. G's house was vandalised. P, an infant, entered it through an open door and was subsequently injured. Held, that the local authority were the legal occupiers. The property had become vacant due to their assertion of their right to control the property by serving a notice of entry. That assertion alone meant that the local authority were occupiers.

Answer 26

From a dishonourable cause an action does not arise. New Test see **Patel v Mirza** 2016 UKSC 42

Answer 27

(-) Staples v West Dorset District Council 1995 Occupier need not display a warning sign if danger obvious to claimant. Pneumonic *Algae slipping down the shelves at Staples Office Supplies...what music playing in background? Something from Oasis....*

Answer 28

The Calgarth 1927 "When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters" Scrutton LJ in The Calgarth [1927] P 93,110: Facts Captain had been granted permission to use a channel. Captain used channel in an unauthorised way.

Answer 29

Occupiers' Liability Act 1957

Answer 30

(+) BUT Note Predates OLA 1957 now subsumed in s.1(2) of act on licensees? Hillen v ICI (Alkali) Limited [1936] AC 65 Held that stevedores, who were lawfully on a barge for the purpose of discharging it, nevertheless became trespassers when they went on to an inadequately supported hatch cover to unload some of the cargo, since they knew that they ought not to use the covered hatch for this purpose. This knowledge meant that the hatch area was in effect "out of bounds" for that purpose, and that they were to that extent "trespassers", unable to rely on duties owed to invitees or licensees

Answer 31

**Wheat v Lacon 1966** Held D and landlord had sufficient control→ occupiers NOT owner. On facts, neither found guilty of breach as it had been a stranger responsible for removing the lightbulb → poor light conditions. Principle P1 (Most significant) Occupier determined by degree of control over property P2 More than one person can be occupier at the same time Pnemonic *Wheat tripping over a heavy Lacon (Lacan) book in pub. Music playing Beatles new Pet Sounds album*

Answer 32

AMF v Magnet Bowling 1968 Pnemonic EMF is going to timber you. In the news MLK assassinated

Answer 33

Yes **Collier v Anglian Water Authority 1983** Area of seafront where Claimant injured tripping over seafront walkway was owed by council and water board. Agreement was LA owned promenade and water board maintained it. HELD **occupiers LA and WB shared liability.**

Answer 34

Haley v London Electricty Board 1965 HL NEUTRAL Principle Occupier owes common duty of care to all visitors and must make reasonable arrangements for any special characteristics visitors may have. Duty of Care (+) Salient facts Workmen had placed an object over which the Blindman tripped., Object had been placed to protect pedestrians and deflect them from trench (gave adequate warning for normally sighted persons) Blindman had walked same route for 6 years 258 registered blind in district =› reasonably foreseeable (+) Post office took account of blind in saturating their own excavations Variants 1. Anon-blind person (no special characteristics) falls in a hole Since the warning was adequate =› breach(-) 2. Workmen erected fluorescent barriers around the hole 3. The hole was being supervised whilst someone falls into it.´, ie does employee of electricity company have a duty of care to stop another from falling? 4 Blindman was not using a stick "Appellant was alone and had approached with reasonable care, waving his white stick in front of him to detect objects in his way and also feeling the railings with it," Had this not been the case =› contributory negligence? 4 A child falls into the hole Special characteristics? Pnemonic *Haleys comment did not strike down blind man but paid him money electrics strike down comet* Beatles song Help!

Answer 35

Revill v Newbery 1996 CA Salient Facts The plaintiff attempted to break into the allotment shed of the defendant, aged 76. The defendant fired his shotgun through a hole in the shed door, hitting and injuring the plaintiff. Plaintiff argued... The plaintiff pleaded guilty to various criminal offences and the defendant was prosecuted on charges of wounding, but was acquitted. The plaintiff brought an action for damages for personal injuries on the basis of trespass to the person, breach of the duty owed under the Occupier’s Liability Act 1984, s 1, and negligence. Defendant argued... The defendant raised the defences of ex turpi causa non oritur actio, accident, self-defence and contributory negligence. Held first instance judge found that the defendant used greater violence than was justified in lawful self-defence and was negligent even by the standard of care to be expected from the reasonable man placed in the defendant’s situation. Plaintiff was awarded damages but since controibutory negligent ==only 1/3 Appeal dismissed On the defendant’s appeal, held, the judge’s finding was entirely justified. Issues ex turpi causa non oritur actio, the issue was whether the plaintiff in a personal injury claim for damages for negligence was debarred from making any recovery where he was a trespasser and engaged in criminal activities when the injury was suffered. Any broad test of causation was satisfied in such a case, as the plaintiff would not have sustained the injury caused by the defendant unless he had been where he was and acting as he was at the relevant time. These were factors which were taken into account when assessing contributory negligence. The question of whether there was a complete defence would only have relevance to the defendant’s proportion of the liability. If the ex turpi defence were applied == criminal same as outlaw == debarred from any claim (is argument again against absolute treatment??) Criminal clearly not an outlaw What is an outlaw? Revill not evil was the trespasser Newberry allotment owner 1996

Answer 36

BRB v Herrington 1972 HOL ## Footnote Facts six year old boy was electrocuted when he wondered from a play park onto a live railway line. The railway line was surrounded by a fence however, part of the fence had been pushed down and the gap created had been used frequently as a short cut to the park. The defendant was aware of the gap in the fence (inferred knowledge) which had been present for several months, but had failed to do anything about it. Disapproved Addie v Dumbreck whereby no duty of care was owed to trespassers. Instead Applied 1966 Practice Statement? === D railway company duty of common humanity (+) to trespassers Pearsons Arguments 1. More built up areas == less place for children to play == more temptation to trespass 2 Less supervision of children == more likely to trespass 3 improvements in technology=== more dangerous ex quicker equipment, including trains? 4 Addie v Dumbreck too rigid {absilute ie no liability for trespassers but why here?}

Answer 37

"A person who has sufficient control over the premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an occupier." - Lord Denning in Wheat v E. Lacon

Answer 38

1. When the occupier is aware or ought to be aware of the danger 2. He knows or has reasonable grounds to believe that the trespasser may be in the vicinity of the danger 3. May reasonably be expected in all the circumstances to offer some protection to the trespasser against the danger.

Answer 39

That the person is reasonably safe using the premises for the purposes of the visit. It is the visitor that must be safe not necessarily the premises.

Answer 40

- Owner/occupier, tenant/occupier, have physical presence on the property. - Owner not in physical possession but retaining some control - Absentee owners may be in occupation - There can be more than one occupier of the same premises at the same time.

Answer 41

caused by state or conditionm of premises or things done dutring occupation of premises ie state and activity BUT

Answer 42

Harris v Birkenhead Wheat v Lacon?

Answer 43

#invariably fact sensitive# because in particular this statute framed in such broad terms

Answer 44

\* endorses Diplock in Herrington that Occupier must have ACTUAL knowledge of danger from which a reasonable occupier would conclude there was a danger. ==\> endorsed by Swain v Natui Ram Puri \* financial resources of particualr occupier ARE relevant in deciding what level of protection they can reasonably be expected to offer \* facts Occupiers of a College Swimming Pool. Guy by breaking in when pool closed for winter had #voluntarily assumed the risk of his activities#

Answer 45

William Newbery (N) slept in a shed on his allotment to protect his property at night. Mark Revill (R) and his accomplice Grainger (G) trespassed onto the allotment and attempted to break into the shed. N fired a 12-bore shotgun through a hole in the shed intending only to frighten R and G, however R was shot. Ex turpi defence will not =\> liability(-) but in this case it reduced sum of damages due to trespasser having contribtry neg Issue of firing warning shot?

Answer 46

#It is unjust that the harmles recreation of responsible parents and children with buckets and spades..... should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which...a re obvious#

Answer 47

Collins v Wilcock [1984] 1 WLR 1172 Definition of battery, unlawful touching when beyond scope of police authority Facts A police officer wished to question a woman in relation to her alleged activity as a prostitute. The woman decided to walk away, but the police officer was intent on stopping her and in order to do so, grabbed her arm in order to prevent her from walking away. Under the Street Offences Act 1959 c.57, the police officer had no power to detain the woman. **RATIO HERE** “[A] broader exception has been created to allow for the exigencies of everyday life. Generally speaking consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact . . Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life . . [We] think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception. . . In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case.” (Goff LJ)

Answer 48

Ernest Weinrib Corrective justive theory. Bipolar relationship. QUOTE Since the defendant if liable has commited the same injustice that the claimant has suffered the reasnm the claimant wins ought to be the samea as the reason the defendant loses. In specifying the nature of th einjustce, the only significant normative factors are those that equally to both parties – for example, the defedants having a deep pocket o rbeing in a position to distribute losses broadly..is an inappropriate justification for liability.

Answer 49

Unlawful for any public authority, including a court, to act in a way which is incompatible with Convention rights

Answer 50

respect for private and family life privacy vs public authority

Answer 51

The friend brought her a bottle of ginger beer and an ice cream. Decomposed snail. rs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer. Her claim was successful. This case established the modern law of negligence and established the neighbour test. Lord Atkin #The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question --Who is my neighbour ?-- receives a restricted reply. ***You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour***. Who then in law is my neighbour ? The answer seems to be ***persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind*** to the acts or omissions which are called in question.#

Answer 52

1970 marked the start of a rapid expansion in the scope of negligence in the United Kingdom by widening the circumstances in which a court was likely to find a duty of care. On 21 September 1962, ten borstal trainees were working on Brownsea Island in the harbour under the control of three officers employed by the Home Office. Seven trainees escaped one night, at the time the officers had retired to bed leaving the trainees to their own devices. The seven trainees who escaped boarded a yacht and collided with another yacht, the property of the respondents, and damaged it. The owners of the yacht sued the Home Office in negligence for damages. DENNING Lord Denning MR held that the Home Office should be liable for the damage on grounds of public policy. He stated #Up till now it has fallen on the innocent victim. Many, many a time has a prisoner escaped - or been let out on parole - and done damage. But there is never a case in our law books when the prison authorities have been liable for it. No householder who has been burgled, no person who has been wounded by a criminal, has ever recovered damages from the prison authorities; such as to find a place in the reports. The householder has claimed on his insurance company. The injured man can now claim on the compensation fund. None has claimed against the prison authorities. Should we alter all this: I should be reluctant to do so if, by so doing, we should hamper all the good work being done by our prison authorities... I can see the force of this argument. But I do not think it should prevail. I think that the officers of Borstal institutions should be liable for negligence.# Reid reaffirmed Atkin .the well-known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion. And forseeablity (objetive test)... #..the taking by the trainees of a nearby yacht and the causing of damage to the other yacht which belonged to the respondents ***ought to have been foreseen by the borstal officers as likely to occur if they failed to exercise proper control or supervision***; in the particular circumstances the officers prima facie owed a duty of care to the respondents...#

Answer 53

overruled by Murphy v Brentwood District Council A builder failed to build proper foundations to a house. The defendant local authority, approving the building for its building regulations, failed to recognise the problem. When the building became dangerously unstable, the claimant, being unable to raise any money for repairs and choosing not to sue anyone at that stage therefore had to sell the house at a considerable loss. He sought to recover his loss from Brentwood District Council, but this action failed as the loss, the deflated value he obtained for the house, was classed as a pure economic loss. The House of Lords overruled Anns held that council was not liable in the absence of physical injury Also, the case of **Dutton v Bognor Regis UDC** was disapproved. Just as in the Anns case, Building Regulations are part of the bylaws of the local Council. The Regulations require that notice should be given to the Council both at the commencement of the work and at specific stages, such as when the foundation trenches were ready to be poured. Councils have the power to inspect the foundations and to require any corrections necessary to bring the work into conformity with the bylaws, but they are not under an obligation to do so. In Anns the House of Lords considered whether the local council were under any duty of care toward owners or occupiers of houses as regards inspection during the building process, and unanimously decided that a duty of care did exist and that such a duty was not barred by a "limitation of actions" statute. Anns has been overruled, with the conclusion that a person who has a right has no duties implicitly attached to that right. Jurists Mickey Dias and Hohfeld have shown that rights and duties are jural correlatives.[3] That is to say: if someone has a right, someone else owes a duty to them. So here, the inspectors have a right (to inspect), and the builder has a duty (to let them inspect). If the Building Regulations do not serve to protect the interests of the individual purchaser of the building, what then is their purpose? It seems that they are no more than a means for the Council to maintain building standards in general and to prevent foreseeable dangers to life and limb while imposing no duty to maintain standards otherwise in each particular case.

Answer 54

a specific form of liability, whereby persons who by carelessness cause damage to others may be liable to pay compensation. \* Most common tort \*

Answer 55

Claiamnt must prove existence of 1 **Duty of Care** at time of act 2 Breach of that Duty 3 Factual causation THEN DEFENDANT: 4 Remoteness of damage 5 Presence of valid defence

Answer 56

Caparo PLC v Dickman [1990] 2 AC 605 If new then Novel cases 1. Is there **reasonable foreseeability** of injurty to a class of person including claimant 1. Objective test of capacity 2. Would a erasonabel person in position of C have foreseen that carelessness may lead to injury of kind suffered to a class ...? AND 2. Sufficient relationship of **proximity** between claimaint and defendant 1. Existed sufficient factual links between parties (neighbourhood or closesness) ex pathways t oharm, THEN 3. Inquiry as to whether fair, just and reasonable to recognise a duty 1. mid-level policy issues fot or against

Answer 57

Wilsons & Clyde Coal Co Ltd v English [1937]3 All ER 628

Answer 58

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Answer 59

Nettleship v Weston [1971] 2QB 691

Answer 60

Duty (-) Hill v Chief Constable West Yorkshire [1989]AC 53

Answer 61

_Watson v British Board of Boxing Control [2001]QB 1134_ Did the BBBC have a duty to provide ringside medical assistance YES Ratio: A governing body of a sport, had a duty to insist on arrangements for sporting events, held under its aegis, to ensure proper access to medical aid. There was no contract between the parties, but boxers had to fight under the Board’s rules. A failure to set standards which could reasonably have mitigated the plaintiff’s injuries made them responsible in negligence.

Answer 62

* A fear of a multiplicity of actions (the so-called **floodgates** *argument*) may persuade the courts to deny a duty of care – ex, Dickman v *_Caparo_*; * If there is a relevant **statutory provision** that has not provided for liability in the particular circumstances, the courts are reluctant to impose a duty of care. See, for example: *_Yuen Kun Yeu v Attorney-General of Hong Kong,_ [1988] AC 175* * If the imposition of a duty might introduce a **defensive** attitude to the carrying out of necessary public functions, such as policing – see *_Hill v Chief Constable of West Yorkshire*_. But cf. _*Capital and Counties v Hampshire CC_ [1997] QB 1004* where the CA **held** that a fire authority did owe a duty of care. The CA doubted whether policy should confer immunity on the fire brigade. * If the imposition of a duty might introduce a **defensive** attitude to the carrying out of certain private functions, such as the role of social workers & landlords, (both private and LA) – see *_Mitchell v Glasgow City Council [2009] 1 AC 874_* where the HoL said imposing a duty on the council to warn a family about a violent neighbour was not fair, just or reasonable as to do so would impose a similar duty on all landlords and social workers in similar positions; thereby deterring them from carrying out their jobs properly. Also Simonds v IOW Council * If the structure of the **network of transactions** involved renders it unwise to impose a duty of care, for example in the case of complex commercial transactions where the parties have had an opportunity to negotiate the structure of their various obligations. * If an award of damages against a public authority exercising a public function would have an adverse impact on the **resources** available to the authority to perform its duties. See, for example: *_X (minors) v Bedfordshire CC_ [1995] 3 All ER 353*. * If there is **an alternative cause of action**. An obvious example is the interrelationship between contract and tort. * If the claimant is **the author of his/her own misfortune**. So, for example, in *_Philcox v Civil Aviation Authority,_ (1995) The Times 08/06/95* the CAA did not owe a duty of care to the owner of an aircraft to ensure that he maintained his aircraft correctly. Civil Aviation Authority’s role is for the protection of the pubic generally, not to look after individuals.

Answer 63

* *_Mitchell v Glasgow City Council [2009] 1 AC 874_* where the HoL said imposing a duty on the council to warn a family about a violent neighbour was not fair, just or reasonable as to do so would impose a similar duty on all landlords and social workers in similar positions; thereby deterring them from carrying out their jobs properly.

Answer 64

Brennan J. in the High Court of Australia in Sutherland Shire Council v Heyman, (1985) 60 A.L.R 1, 43 (cited with approval by Lord Bridge in Caparo): ## Footnote **#It is preferable in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather that by a massive extension of a prima facie duty of care restrained only by indefinable ‘considerations which ought to negative or limit the scope of the duty or the class of persons to whom it is owed#**

Answer 65

_Robinson v Chief Constable of West Yorkshire [2018] UKSC 4_ Novel duty of care? “The proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken. As Lord Toulson pointed out in his landmark judgment in Michael v Chief Constable of South Wales Police (Refuge and others intervening) [2015] UKSC 2; [2015] AC 1732, para 106, that understanding of the case mistakes the whole point of Caparo, which was to repudiate the idea that there is a single test which can be applied in all cases in order to determine whether a duty of care exists, and instead to adopt an approach based, in the manner characteristic of the common law, on precedent, and on the development of the law incrementally and by analogy with established authorities…. …Properly understood, Caparo thus achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable. In the present case, however, the court is not required to consider an extension of the law of negligence. All that is required is the application to particular circumstances of established principles governing liability for personal injuries….” …They (the police officers) therefore owed her a duty of care. “ So _Robinson_ confirms that the incremental approach is preferred in deciding whether a duty of care is owed. This therefore makes it more difficult to establish new categories of negligence that are significantly different from or wider in scope than their predecessors. The _Caparo_ test however provides the framework underpinning whether new categories of duty of care are to be recognised (as the _Caparo_ test has been used to determine duty of care in previous cases).

Answer 66

_Robinson v Chief Constable of West Yorkshire [2018] SC_ HERE Police officers did owe a duty to victims of crime. Confirmed that there is no general rule that the police are not under a duty of care when discharging their function of preventing and investigating crime. ==\> generally owe a duty of care when such a duty arises under ordinary principles of negligence. ==\> may be under a duty of care to prevent an individual from a danger of injury which they have themselves created ==\> however the police are not normally under a duty of care to protect individuals from a danger of injury **which they have not themselves created** including injury ——

Answer 67

_Haley v London Electricity Board [1965] AC 778_ The claimant was blind and tripped over a hammer which had been placed on the pavement by the defendant to prevent pedestrians from walking along the pavement as they carried out their work. As a result of the fall the claimant was left almost totally deaf. Held: negligence + see elsewhere

Answer 68

reluctance to impose liability for omissions _Smith v Littlewoods Organisation Ltd. [1987] AC 241_ Defendants purchased a cinema for re-development purposes. It remained empty and was on two occasions, unknown to the defendants or the police, entered by vandals who attempted to start fires. Subsequently, a fire was started, which caused substantial property damage to adjacent property. The House of Lords **held** that NO liability as **“the common law does not impose liability for what are called pure omissions”** The defendants were not aware of previous attempts of vandals to start fire and as such, the building did not present an obvious fire risk, so the defendants were not under any duty to anticipate the possibility of fire and take measures to prevent the entry of vandals. Exceptions ASSUMPTION OF RESPONSIBILITY A person, who **undertakes a task**, even gratuitously, **assumes a duty to act carefully** in its performance. In Barrett v Ministry of Defence [1995] 1 WLR 1217 CLAIMANT UNDER THE CARE OR CONTROL OF THE DEFENDANT A RELATIONSHIP BETWEEN THE DEFENDANT AND THE THIRD PARTY THAT IS THE CAUSE OF THE HARM TO THE CLAIMANT MAY LEAD TO LIABILITY. 1. AN OCCUPIER’S CONTROL OF LAND OR DANGEROUS THINGS ON IT MAY GIVE RISE TO AN AFFIRMATIVE DUTY TO TAKE REASONABLE PRECAUTIONS TO CONTROL THE CIRCUMSTANCES THAT COULD LEAD TO THE DAMAGE.

Answer 69

**Barrett v MOD [1995] 1 WLR 1217** ## Footnote The claimant’s husband was in the Navy stationed at a remote base in Norway. One night he was celebrating his 30^th birthday and a recent promotion by drinking with his friends in the bar provided at the Naval base. It was a Friday night which was a night on which the men would generally indulge in heavy drinking. The bar was putting on an Hawain night and duty free alcohol was available. The claimant’s husband was drinking heavily and was involved in a drinking competition and became extremely drunk to the point where he passed out. He was carried to a chair in the lobby. A senior officer saw him and told Petty Officer Wells to take him back to his cabin and look after him. He was taken back and placed in his bunk and left in the recovery position. He was in a coma but tossing and turning. The Petty Officer checked on him on two occasions but he was then found dead at 2.30am. At trial the judge held that the MOD were liable for his death because of the relaxed attitude towards excessive drinking at the base, in that it was common for officers to drink heavily and rules and penalties relating to alcohol consumption were not being enforced. The damages were reduced by 25% under the Law Reform (Contributory Negligence Act) 1945. The MOD appealed on the grounds that no duty of care should arise to prevent a person becoming intoxicated. Held: MOD were liable, ==\> not liable through breach of a duty of care to prevent him becoming dangerously intoxicated, ==\> Until the deceased became unconscious, he alone carried the legal responsibility for his own actions, **however, once the senior officer assumed a responsibility for him by ordering the Petty Officer to look after him a duty of care did arise**. ==\> In breach of duty by failing to ensure the deceased received the appropriate supervision. see Horsley v McClaren 1970

Answer 70

the Ogopogo case OR **Horsley v MacLaren, [1972] S.C.R. 441** MacLaren was the owner and captain of a boat called The Ogopogo. He invited several friends out on his boat including Mr. Matthews, Mr. Horsley, and Mr. and Mrs. Jones. During their cruise, Matthews fell overboard into the icy water which caused him to have a heart attack and die. MacLaren backed the boat up to rescue Matthews not knowing if he was alive. Horsley jumped into the water to save Matthews but he was also overcome by the cold water. Mrs. Jones then jumped in to help them both. Mr. Jones, Mrs. Jones' husband, moved the boat into a better position to rescue the three. In all, Mr. Matthews and Mr.Horsley were killed.. Opinion of the Court[edit] The Court held that "encouragement by the common law of the rescue of persons in danger would ... go beyond reasonable bounds if it involved liability of one rescuer to a succeeding one where the former has not been guilty of any fault which could be said to have induced a second rescue attempt." _The Donoghue v Stevenson case doesn't touch this principle, because it says that you have a duty to avoid causing harm, not a duty to help someone else_. In the Court of Appeal for Ontario decision [1970] 2 O.R. 487, 11 D.L.R. (3d) 277, Arthur Jessup J. wrote for the court: "So, despite the moral outrage of the text writers, it appears presently the law that one can, with immunity, smoke a cigarette on the beach while one’s neighbour drowns and, without a word of warning watch a child or blind person walk into certain danger". It was held that a person who embarks on a rescue is not liable unless his intervention or discontinuance of efforts leaves the rescuee in a worse condition that when the rescue was commenced. ==\> Although the host had a duty to do the best he could to effect a rescue, he was not negligent in doing so ==\> A duty to rescue can be owed though

Answer 71

**Carmarthenshire CC v Lewis** **1955 AC 549** A RELATIONSHIP BETWEEN THE DEFENDANT AND THE THIRD PARTY THAT IS THE CAUSE OF THE HARM TO THE CLAIMANT MAY LEAD TO LIABILITY. ratehr than injury to the child itself! ALSO electricyt authoerty that had high voltage wires near a climbale true owed a duty of care to a child who trespassed off a nearby footpath, clumbed the tree and was killed. **Buckland v Guilford gas Light 1949** these 2 cases represent an extension of Atkins neighbour principle to novel situations which reached its peak wiith Caparo Dickmann

Answer 72

Haley v London Electricity Board ## Footnote •Held: It was reasonably foreseeable that a blind man would be injured by the defendant’s action

Answer 73

Murphy v Brentwood District Council ## Footnote #It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care, restrained only by indefinable ‘considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed’#

Answer 74

–Caparo relied on an audit performed by Dickman (auditors) in taking over a company. –Audit found to have false information as company worthless –Caparo sued for loss as a result of Dickman’s negligence in the audit preparation –Held: No relationship of proximity between the parties –Audit was meant for the company not investors

Answer 75

**Reeves v Commissioner of Police for the Metropolis** \*Police inmate committed suicide while detained \*He was not mentally ill \*Widow sued claiming the police had a duty of care to prevent the suicide \*Court held the police had a duty of care; inmate was under their control

Answer 76

**Costello v Chief Constable of Northumbria Police** Claimant (police officer) was attacked by a prisoner from his cell.Her colleague heard her screams but did not act to help her Claimant sued claiming a duty to help her was owed by the police to her Court agreed. The police officer had assumed a responsibility to help other members of the force Barrett v Ministry of Defence Drunken sailors The MOD were liable, not through breach of a duty of care to prevent him becoming dangerously intoxicated, Until the deceased became unconscious, he alone carried the legal responsibility for his own actions, however, once the senior officer assumed a responsibility for him by ordering the Petty Officer to look after him a duty of care did arise. He was in breach of duty by failing to ensure the deceased received the appropriate supervision.

Answer 77

NO A bit like Canadian case where attempted rescue was made..cannot be liable if it failed \*but lay vs fire brigade? **Glenfell?** * However, they would be liable if they created danger or worsened the situation * Here, brifgade ordered the sprinkler system to be switched off thereby increasing the fire led a finding of liability against the fire brigade. Had the sprinklers not been switched off it is likely blocks B & C would have been saved. ==\> Duty of care was owed in Capital & Counties v Hampshire since the fire brigade’s action in turning off the sprinklers **increased the damage**.

Answer 78

Negligence – test – body of medical opinion A doctor was not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that art merely because there was a body of opinion that took a contrary view. For negligence to be proved, the doctor had to fall below a standard of practice recognised as proper by a responsible body of opinion at the time of the alleged negligence. =\> “the ordinary skilled man exercising and professing to have that special skill” =\> “he [the defendant – a doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’ _ALSO_ **Bolitho v City and Hackney Health Authority** Opinion of body of doctors must be logical **Wilsher v Essex Area Health Authority [1988]** junior doctors. Junior doctor held to the standard of a qualified doctor

Answer 79

1 Claimant reasonably forseeable bearng in mind kidn of harm involved 2 Relationship of proximity between Claimant and defendant AND 3 fair just and reasonable in the circumstacnes for a DoC to be imposed on the D

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