Tort Law

Question 1

Stage 1 of Negligence

Answer 1

Establishing a Duty of Care

• Donoghue v Stevenson established the neighbour principle.
• This was later updated in Robinson as a ‘clear and obvious relationship’ that makes it fair, just and reasonable to impose a DOC.

Question 2

Stage 2 of Negligence

Answer 2

Establishing a Breach of Duty
- Objective test. Alderson B in Blyth v Birmingham Waterworks defines breach as ‘doing something a reasonable man wouldn’t do, or not doing something the reasonable man would do.’

Characteristics:

Expert (Bolam/Bolitho) - Judged to the standard of a reasonably competent professional.

Learner (Nettleship v Weston) - Judged to the standard of someone experienced and competent.

Children (Mullins v Richards) - Judged to the standards of a reasonable child of a similar age.

If they do not fit into a specific category, they will be judged to the standard of a reasonable man performing the same task (Vaughan v Menlove)

Question 3

Risk Factors of Negligence

Answer 3

Risk factors raise/ lower the standard of expected care required.

1) Probability of Harm (Bolton v Stone).

2) Magnitude of the Risk (Paris v Stepney Council).

3) Cost and Practicality of Precautions (Latimer).

Side Rule: Possible Benefits of the Risk (Watt V Hertfordshire Council).

Question 4

Stage 3 of Negligence

Answer 4

The Breach of Duty caused the Damage

1) Factual Causation (Barnett v Chelsea Hospital) - ‘But for test’.

2) Legal Causation (Wagon Mound No. 1) - Relates to the remoteness of the damage.

Side Rule: Hughes v Lord Advocate - Foreseeability.

Side Rule: Smith v Leech Brain Co - Thin Skill Rule

Question 5

Stage 1 of Psychiatric Injury

Answer 5

The C must be suffering from a recognised psychiatric injury, not ordinary human emotions (Reilly v Merseyside Health Authority)

The C must show the illness was caused by a traumatic event, or an ‘assault on the senses’ (Sion v Hampstead Health Authority)

Question 6

Stage 2 of Psychiatric Injury
[Primary Victim]

Answer 6

Must establish if the C was a primary or secondary victim.

Primary Victim:
- A person who reasonably fears for their own safety, or is within the zone of danger.
- They have been directly affected by the negligent act.

Page v Smith established a 2 stage test for primary caregivers:

1) Primary victims do not have to show that psychiatric injury was foreseeable, merely that some kind of personal injury was foreseeable.
2) The Primary Victim does not have to be a person of normal fortitude.

Question 7

Stage 2 of Psychiatric Injury
[Secondary Victim]

Answer 7

Must establish if the C was a primary or secondary victim.

Secondary Victim:
- Unwilling witness to traumatic event.
- Not personally in danger of physical harm.

Alcock established control mechanisms, updated in Paul, Polmear and Purchase:

1) Love - Close ties of love and affection.
2) Witness - Must witness the accident or it’s immediate aftermath, with your own unaided senses (McLoughlin v O’Brian)
3) Directly Perceived - C must have directly perceived the accident or it’s immediate aftermath, meaning they saw it in person.
4) Connection - Must be a connection between witnessing the event and the illness suffered.

SIDE RULES:
- Rescuer (Chadwick v British Transport)
- Bystanders (McFarlane)

Question 8

Types of Economic Loss

Answer 8

Consequential Economic Loss:
- Loss of money, direct consequence of physical damage caused by negligent acts.
- The loss IS recoverable (Spartan Steel v Martin).

Pure Economic Loss:
- Loss of money, not consequential of any physical injury or damage to the C.
- You cannot claim this under tort (Spartan Steel v Martin.)

Negligent Misstatement

Question 9

Definition of Negligent Misstatement

Answer 9

D makes a statement, the C relies on this, and loses money as a result.
Hedley Byrne v Heller set out the following conditions, that give rise to a special relationship between the two parties (Caparo v Dickman).

Question 10

Stage 1 of Negligent Misstatement

Answer 10

Does the D possess any special skill relating to the advice given?
- This is based on the D and the reliance placed upon it by the C.

Side Rule Social Situations (Chaudhry v Prabhaker)

Question 11

Stage 2 of Negligent Misstatement

Answer 11

D knows it is highly likely for the C to rely on the advice.

Mutual Life v Evatt stated a duty arises when the D is in the business of giving that advice, or professed to have a special skill in the field the advice was given. The D must know the C will rely on it.

Question 12

Stage 3 of Negligent Misstatement

Answer 12

The C relies on the D’s advice and suffers financial loss.

Question 13

Stage 4 of Negligent Misstatement

Answer 13

It must be reasonable for the C to rely on the advice.

Caparo V Dickman stated if there is proximity between the C and the D, it is more reasonable to rely on the advice.

If the D is in a position of authority, then it is more reasonable to rely on the advice (White v Jones).

Side Rule: Voluntary assumption of a duty (Hedley Byrne v Heller).

Question 14

Definition of Nuisance

Answer 14

The unlawful interference with a person’s use or enjoyment of land. The interference must be unreasonable.

Question 15

Stage 1 of Nuisance

Answer 15

Parties to a Claim:
Claimant - The C must demonstrate an appropriate legal interest in the land (Hunter v Canary Wharf). They are usually the owner/tenant.

Defendant - The D is the creator of the nuisance. Lord Goff in Cambridge Water states ‘The fact the D has taken all reasonable care will not exonerate him’.

Side Rule: This could also be local authority (Jones Ltd v PCC)

Question 16

Stage 2 of Nuisance

Answer 16

There are 4 key factors to decide whether the interference is unreasonable:

1) Location - ‘Has the character of the neighbourhood changed?’ Consider the type of location (Leeman v Montaghue).
SIDE RULE: Damage to land makes Location irrelevant (St Helens Smelting v Tipping).

2) Duration - How long did the nuisance last? The longer the nuisance the greater the interference (Cunard v Antifyre).
SIDE RULES:
- If the nuisance occurs at night, more likely to be seen as unreasonable (De Keyser’s Royal Hotel).
- Even if it doesn’t last long, if the nuisance is continuous the courts can deem it unreasonable (Crown River Cruises v Kimbolton Fireworks).

3) Motive and Malice of the D - If the activity of the D is motivated by malice, it is unreasonable (Christie v Davey).

4) Sensitivity of the D - If the C is abnormally sensitive, D will not be liable unless a reasonable person would believe it amounts to a nuisance (Robinson v Kilvert).

Side Rule: Recreational Activities (Hunter v Canary Wharf)

Question 17

Stage 3 of Nuisance

Answer 17

The D can escape liability for nuisance if he has a valid defence.

1) Statutory Authority - Act of Parliament gives permission for the nuisance, a complete defence (Allen v Gulf Oil).

2) Planning Permission - Behaviour authorised by local authority. Merely evidence the courts can use when assessing the interference (Gillingham Council v Medway). If the character of the neighbourhood changes, the interference will not be unreasonable.

3) Prescription - C tolerates the nuisance for a substantial amount of time (20 years) without complaining, then D can claim a prescriptive right.

4) Consent - C expressly or impliedly consents to nuisance.

5) Contributory Negligence - C contributes to own damages, C’s compensation is reduced accordingly in the Law Reform (Contributory Negligence) Act 1945.

6) Moving to the nuisance - C is suffering the nuisance as they moved closer to the allegated problem (Miller v Jackson). This is NOT a successful defence.

Question 18

Stage 4 of Nuisance

Answer 18

If the courts deem the interference as a nuisance, there are a number of remedies that can be claimed.

1) Compensatory Damages - May be awarded where the damages done by the nuisance is quantifiable. Damages for past loss and inconvenience may be awarded.

2) Injunction - Equitable remedy, aims to force the D to act or stop the D doing something (Miller v Jackson).

3) Abatement - A form of self-help, C is entitled to take reasonable steps to lessen the nuisance themselves (Lemmon v Webb).

Question 19

Definition of Rylands v Fletcher

Answer 19

D brings something onto their land and stores it there. This escapes and causes damage to C’s property (Rylands v Fletcher).

Question 20

Stage 1 of Rylands v Fletcher

Answer 20

Firstly, the D must bring something onto their land, and have it accumulate there.

It must be hazardous, and if it is naturally present, it is not an accumulation (Giles v Walker).

The thing must be accumulated for the D’s own purpose (Dunne v North West Gas Board).

Question 21

Stage 2 of Rylands v Fletcher

Answer 21

The thing the D brings onto their land must be likely to cause mischief if it escapes.

This is a test of foreseeability - The damage must be foreseeable if the the thing escapes, not that the thing itself is inherently dangerous (Hale v Jenning Bros).

Question 22

Stage 3 of Rylands v Fletcher

Answer 22

The thing stored must escape.

This must be from a place the d has occupation or control over, to a place outside his/her occupation of control (Read v Lyons).

Question 23

Stage 4 of Rylands v Fletcher

Answer 23

The use of land must be considered a non-natural use. This means the D brought something on their property that was not naturally there.

Transco defined this as ‘extraordinary and unusual, considering the time and place’ or as a ‘special use bringing increased danger to others’.

This can be due to quantity, volume and place where it is stored.

Question 24

Stage 5 of Rylands v Fletcher

Answer 24

Must be established the damage is of a foreseeable type, and not too remote (Cambridge Water).

If the D cannot predict it, they cannot prevent it.

Question 25

Defences for Rylands v Fletcher

Answer 25

Act of a Third Party - Actions of a third party were not reasonably foreseeable. The D must have no control over them (Perry v Kendricks). Act of God - E is due to natural causes that no human foresight could have prevented (Greenock). Statutory Authority - Escape is caused by something D is obligated to do under an act of parliament. Default of C - Damage was due to an act done by the C, then the D will not be liable. Consent - C expressly/impliedly consents to D accumulating the thing - C WILL NOT BE ENTITLED TO REMEDIES.

Question 26

Remedies of Rylands v Fletcher

Answer 26

Compensatory Damages - C can be granted compensatory damages for any damage suffered to the property following the escape. Side Rule: Personal Injury - Lord Hoffman in Transco confirmed personal injury cannot be claimed under RvF. Side Rule: Economic Loss - No liability for pure economic loss under RvF. This is established in Weller v F&M Disease Research Institute.

Question 27

Definition of OLA 1957

Answer 27

C may claim as a lawful visitor under the Occupiers Liability Act 1957. A lv can claim for personal injury and property damage.

Question 28

Stage 1 of OLA 1957 (Occupier, Premises)

Answer 28

Under S.2(1), the occupier owes a 'common duty of care' to visitors. Occupier - Usually the owner or tenant. Lord Denning established the 'sufficient control test', which states 'wherever a person has a sufficient degree of control over premises that they ought to realise that any failure on their part to use care may result in injury to that person'. Wheat v Lacon stated there can be multiple occupiers of the same premises. Premises - S.1(3)(a) states premises are 'any fixed or moveable structure, including any vessel, vehicle or aircraft.'

Question 29

Stage 1 of OLA 1957 Part 2: (Visitor, Common Duty of Care)

Answer 29

Visitor - Anyone invited or permitted to be on the land - this can be expressed or implied. Common Duty of Care - Under S.2(2), an occupier has a 'duty to take reasonable steps to ensure the visitor will be reasonable safe in using the premises for the purpose for which he is invited or permitted to be there'. The injuries must be due to the state of the premises, not the activities of the visitor (Darby v National Trust).

Question 30

Stage 2 of OLA 1957

Answer 30

Did the O breach their duty? They must have acted reasonably - if they 'did something the reasonable man wouldn't do, or not doing something the reasonable man would do', then they breached their duty. The duty is only owed in respect to the purpose the visitor is permitted to be on the premises.

Question 31

Specific Circumstances under OLA 1957: Children

Answer 31

Children - S.2(3)(a), an occupier must be prepared for children to be less careful than adults. - Children may not see the dangers or appreciate risks, so the O has a higher duty of care. - Courts will consider the age and understanding of the child (Jolley v London Borough of Sutton). Side Rules: Allurements (Glasgow Corporation v Taylor). Side Rule: Parental Supervision (Phipps v Rochester Corporation).

Question 32

Specific Circumstances under OLA 1957: Experts

Answer 32

Experts - S.2(3)(b) - The law states experts should look after themselves. An occupier may expect that an expert will 'appreciate and guard against risks in the exercise of their calling' (Roles v Nathan).

Question 33

Specific Circumstances under OLA 1957: Independant Contractors

Answer 33

Independent Contractors - Under S.2(4)(b), the O may be liable for the loss or injuries suffered by visitors when the cause of the damage is due to the negligence of an IC hired by the O - the responsibility can be passed to the IC. 3 Conditions must be satisfied: 1) It must be reasonable for O to have entrusted the work to the IC - Relied on their skill and expertise (Haseldine v Daw). 2) O must have takes reasonable steps to ensure the contractor was competent (Bottomley v Todmorden Cricket Club). 3) Did the O check the work was proper done. Haseldine v Daw stated if the work was of a complex nature, it is less reasonable to impose this on the O, and they have less to do to make sure the task is done.

Question 34

Defences of OLA 1957

Answer 34

Warning Signs - Under S.1(5), Occupiers can discharge their duty if they used an effective warning sign. The warning must be sufficient to enable the visitor to be reasonably safe. Cotton v Derbyshire Council stated there is no obligation to give warning to obvious dangers. Consent - An occupier is not liable for any damage or harm that occurs when the visitor willingly accepts the risks. Contributory Negligence - Law Reform (Contributory Negligence) Act 1957, If the LV is partly responsible, then their damages may be reduced accordingly. Exclusion Clause - Under S.2(1) OLA 1957, O can restrict, modify or exclude liability.

Question 35

Remedies for OLA 1957

Answer 35

A Lawful visitor can claim compensatory damages for personal injury and property damage.

Question 36

Definition of OLA 1984

Answer 36

C can claim as a trespasser under OLA 1984. A trespasser is someone who has no permission to be there or exceeds their permission to be on the premises (Revill v Newbury). A trespasser can only claim for personal injury, not property damage. Under S.1(1), a duty is owed to trespassers for injuries caused by a danger due to the state of the premises.

Question 37

Stage 1 of OLA 1984

Answer 37

We must establish if the O owed a trespasser a duty of care. Under S.1(3), an occupier owes a duty to a trespasser if the following three-part test is established (subjective): - S.1(3)(a), the O is aware of the danger or has reasonable grounds to believe it exists. - S.1(3)(b), the O knows or has reasonable grounds to believe that someone is in the vicinity of danger. - S.1(3)(c), The risk is serious enough that the O may reasonably be expected to offer some protection against it.

Question 38

Stage 2 of OLA 1984

Answer 38

Stage 2 of OLA 1984 is breach. Under S.1(4), the O must take reasonable care to see the trespasser does not suffer personal injury. The premises themselves must be dangerous and not the activity the T chose to engage in

Question 39

Defence of OLA 1984

Answer 39

Warning Signs - an O can discharge duty if they used an effective warning sign. The warning must be sufficient enough to ensure the V is reasonably safe. Tomlinson v Congleton B.C states the emphasis is on making the trespasser aware of why they shouldn't come onto the premises. ^ If the T is a child, they may not necessarily be expected to take notice of warning signs, so greater steps may need to be taken.

Question 40

Remedy of OLA 1984

Answer 40

A trespasser can claim only compensatory damages for personal injury not property damage.

Question 41

Definition of Vicarious Liability

Answer 41

VL is where the employer is liable for the negligence of employees. Two conditions must be proved, as clarified in Trustee's of Barry Congregation.

Question 42

Stage 1 of Vicarious Liability (Traditional Relationship)

Answer 42

It must be decided whether the worker is an employee or an independent contractor. It must be FAIR, JUST and REASONABLE to find the employer responsible. Traditional relationships are established in the Multiple Test, under Ready Mixed Concrete. There are up to 6 conditions that may apply. 1) Whether a wage is paid, tax, national insurance. 2) Who provides tools/ equipment? 3) Whether the worker has to obey orders. 4) Exercise of control over how the work is done. 5) Acceptance of any Business Risk 6) Power to hire/fire assistants.

Question 43

Stage 1 of Vicarious Liability (Doubtful Relationship)

Answer 43

It must be decided whether the worker is an employee or an independent contractor. It must be FAIR, JUST and REASONABLE to find the employer responsible. In Doubtful Cases, the akin to employment test is used, established in Christian Brothers. There are 5 conditions that may be relevant: 1) Employee is more likely to have insurance. 2) Act is committed by employee on behalf of the employee. 3) Employee's activity is likely to be a part of the business activity of the employer. 4) The employer, by employing the employee, created the risk of the act being committed. 5) The employee was under the control of the employer.

Question 44

Stage 1 of Vicarious Liability (Independent Contractor)

Answer 44

It must be decided whether the worker is an employee or an independent contractor. It must be FAIR, JUST and REASONABLE to find the employer responsible. If the T fits none of the other categories, they will be considered an IC, and will not be vicariously liable (Barclays Bank v VC).

Question 45

Stage 2 of Vicarious Liability

Answer 45

Stage 2 of VL is close connection & course of employment. We must question 'Whether the employees acts were so closely connected with acts the employee was authorised to do that, it may fairly and properly be regarded as being done in the ordinary course of his employment'. This is to establish a link between the wrongful conduct and the T's authorised activities.

Question 46

Vicarious Liability - Acts that are or aren't closely connected to the course of their employment.

Answer 46

ARE: - Acting excessively (Vasey). - Acting negligently (Centuries Insurance). - Acting in an unauthorised way (Rose v Plenty). - Criminal act (Morrisons v Mohamud). - Abuse to students (Lister v Hedgeley Hall). AREN'T: - Doing something unrelated (Heasemans v Clarity Cleaning). - Frolic of their own (Storey v Ashton). - Personal Vendetta (Morrisons v Various Claimants). - Abuse to adult outside of work.(Trustee's of Barry Congregation) Side Rule: Travelling to and from work will not be in the course of employment unless T is paid to travel or given travel expenses (Smith v Stages).