week 10 - various liabilities + nuisance Flashcards
what are the remedies to claim if you’re injured by a defective product?
- take action for a loss via law of contract.
- sue via the tort of negligence.
- claim under the consumer protection act.
when might you not be able to claim if injured by a defective product?
- the seller has gone into liquidation.
- there was no contract between you + the seller eg given it by a friend.
what is the consumer protection act 1987?
applies to damaged goods, provides an additional statutory remedy along with tort of negligence. Was designed to impose liability on businesses so does not cover private individuals that are not acting in the course of a business.
who can claim under the consumer protection act?
anyone if they have been injured or have had private property damaged by a defective product.
who are potential defendants?
- producer: includes manufacturer of the product, manufacturer of a defective component, the extractor of raw materials.
- own brander: includes anyone that does not make it clear that the goods were produced for them by another manufacturer (supermarket own brands).
- importer: anyone who imports products from outside of the European community into it in the course of business, only the person who imports the goods into Europe first.
- supplier: the supplier will only be liable if they do not identify the producer, own brander or importer that supplied them with the goods.
The injured party needs to request the info of the potential defendants from the supplier within a reasonable time frame, the supplier then needs to provide this info within reasonable time in order not to be liable themselves.
what happens if there is more than 1 potential defendants?
the defendants are jointly + severally liable, meaning the claimant can take action against any one or all of the defendants.
what does the consumer protection act cover?
- range of goods + components of other products (does not include buildings themselves but does include building materials).
- human body products such as blood.
it must be obtained from a supplier acting in the course of business (could be purchased or hired or as a free gift).
what does s3 of the consumer protection act state?
the product has a defect if the safety of the product is not such as persons generally are to expect, depending on the circumstances of the case + will be taken into account.
the claimant must prove that there was a defect in the product.
what are the circumstances of the defect?
- the time the product was supplied.
- the manner/purpose for which the product was marketed.
- any instructions or warnings given with the product.
- what might reasonably be expected to be done with the product.
what situations can happen for claimants to recover compensation?
- death.
- personal injury.
- damage to “other” private property valued at over £275.
- cannot claim for damage to the product itself.
what must claimants be able to prove?
- that on the balance of probabilities the defective product caused the damage suffered.
- if they can the defendant will be liable (even if they weren’t careless) unless they can prove one of the recognised defences.
- the claimant does not have to prove the producer was at fault when making the product.
what are some valid defences?
- the defect was caused by complying with a requirement from uk or eu legislation.
- the defendant did not supply the goods in the course of a business.
- the defect came about the time of supply eg was interfered with by a third party of the claimant.
-given the scientific/technological knowledge at the time, it was reasonable that the defect was not known.
what is vicarious liability?
being liable for the torts (causing harm) of others. This arises because there is a special relationship between the parties and in employment situations, where an employer is vicariously liable for the torts committed by employees.
The person who commits the tort is still liable but where there is vicarious liability, another person is also liable.
what is occupiers liability?
the legal duty of people who own, rent or control premises to ensure the safety of visitors including lawful visitors + trespassers.
what is the legal distinction between visitors + non visitors?
visitors: those who have express or implied permission from the occupiers to be there.
non visitors: trespassers.
what is the duty of care owed to trespassers?
no duty of care but if a trespasser is injured a duty of care may exist.
the occupier was aware of the danger on the premises or had reasonable grounds to know it had existed.
the occupier knew or had reasonable grounds to believe that the trespasser was in the vicinity of the danger.
the risk was one which the occupier could reasonably be expected to offer the trespasser some protection.
what case is an example of the defendant not being liable for the injury of a trespasser?
ratcliff v mcconell (1988)
the claimant (drunk student) broke into their college’s open air swimming pool at night, scaling a locked gate. He dived into the shallow end + injured himself.
Decision: the claimant should have been aware of the risks of taking diving into water of an unknown depth, therefore the defendant was not liable.
what is meant by private nuisance?
unlawful interference with someone’s use or enjoyment of their land, includes levels of noise + emitting noxious fumes. Just because there is planning permission for an activity, this does not mean that a nuisance doesn’t exist.
what case is an example of an occurrence of a private nuisance?
Coventry v lawrence (2014)
Defendants owned a speedway stadium for which planning permission had been granted in 1975. Claimants moved into a nearby house in 2006 and they brought a nuisance action against the defendants due to the noise generated.
Decision: ruled that the planning authority cannot authorise the commission of a nuisance, judge ruled in favour of the claimant.
what is a public nuisance?
an unlawful act that harms or interferes with the public at large rather than a specific individual.
a common law offence that can also be a criminal act.
what happens if a defendant commits a public nuisance?
they may be prosecuted by the state. if a member of the public suffers particular damage that could sue the defendant in tort.
what is meant by liability to visitors + what act covers this?
- covered by the occupiers liability act 1957.
- an occupier of land owes a common duty of care to all visitors on their premises.
- the occupier must take such care that the visitor will be reasonably safe in using the premises for the reason they have been invited there.
- this takes into account the behaviour that would be reasonably expected of the visitor.
what is meant by liability to non-visitors + what act covers this?
- covered by the occupier’s liability act 1984.
- includes trespassers + people who have a legal right of way over an occupier’s land.
