Tort

Question 1

What is the duty imposed on employers by the HSWA 1974? Special feature of the duty?

Answer 1

To ensure, as far as reasonably practicable, the health, safety and welfare at work of all employees

The duty is personal, owed to each employee and may not be delegated (e.g. to independent contractors)

Question 2

What common excuse may employers rely on to avoid liability to employees for failing to provide proper and safe equipment?

Answer 2

Where employees do not make proper use of the equipment which the employer has properly trained to use

Question 3

3 implications for employers of the duty to provide a safe system of working and supervision?

Answer 3

1. Must provide training and information to manage identifiable risks
2. Must ensure employees comply with any system
3. Ongoing duty requiring continual assessment

Question 4

2 implications for employers of the duty to provide fit and competent staff?

Answer 4

1. Exercise reasonable care and skill in selecting competent staff
2. Train, supervise and dismiss employees who present a risk

Question 5

What is one unique feature of vicarious liability?

Answer 5

It is strict liability

Question 6

3 requirements for vicarious liability to arise?

Answer 6

1. A tort
2. Committed by D’s employee (or someone in a r/s akin to employment)
3. During the course of employment

Question 7

Most crucial question when determining if a relationship akin to employment exists for VL purposes?

Answer 7

Is it a contract OF service (employment) or a contract FOR services (independent contractor)

Question 8

3 different tests for relationship akin to employment?

Answer 8

1. Control test
2. Degree of integration test
3. Multiple or economic reality test

Question 9

When may an employer be liable for the negligent act of its employee even if it did not authorise that act?

Answer 9

If the act is SO CLOSELY CONNECTED with the task the employee is instructed to perform, that it can be considered PART OF THAT ACT

Question 10

Can employers avoid VL if they expressly prohibited the loss-causing act of the employee?

Answer 10

Yes, may still be within course of employment

Question 11

What recourse does the employer have against the wrongdoing employee if found vicariously liable for the latter’s act?

Answer 11

1. Recover contribution under the CL(C)A
2. Recover an indemnity at common law for breach of an implied undertaking that the employee will take reasonable care

Question 12

What locus standi test applies to claims for private nuisance?

Answer 12

The person must have property rights in the land - so visitors and mere licensees are excluded

Question 13

2 requirements to bring a public nuisance claim?

Answer 13

1. Nuisance affected the public or a particular class of the public
2. C suffered SPECIAL AND PARTICULAR DAMAGE over and above the inconvenience caused to the public at large

Question 14

What kind of acts are capable of giving rise to private nuisance (2 points)?

Answer 14

1. Both positive acts and inactions/omissions (e.g. if occupier failed to take reasonable steps to bring a nuisance act by a third party to an end)
2. Must be a CONTINUING nuisance - ongoing state of affairs or repeated activity

Question 15

2 key differences between private and public nuisance?

Answer 15

1. Public nuisance does not require property rights, only special damage
2. Public nuisance does not require a continuing act - isolated incidents may qualify

Question 16

What is the key governing principle in claims for private nuisance?

Answer 16

Reasonableness between neighbours

Question 17

3 categories of interference with quiet enjoyment in private nuisance claims?

Answer 17

1. Encroachment
2. Direct physical injury
3. Interference

Question 18

3 possible defendants D can sue for private nuisance?

Answer 18

1. Creator
2. Occupier of property from which nuisance emanates
3. Landlord

Question 19

Procedural issue if C wants to take abatement measures in private nuisance claims?

Answer 19

If abatement involves entering tortfeasor’s land, prior notice should be given

Question 20

3 defences to a private nuisance claim?

Answer 20

1. Prescription (20 years without complaining)
2. Statutory authority (provided not negligently exercised)
3. Arises from lawful use of the land

Question 21

6 requirements for Rylands v Fletcher tort?

Answer 21

1. The defendant BROUGHT and ACCUMULATED on the land
2. Something constituting a NON-NATURAL USE of the land
3. Which is LIKELY TO DO MISCHIEF
4. If it ESCAPES
5. Damage caused to the affected land was FORESEEABLE
6. C has an INTEREST in the affected land

Question 22

Unique feature of fire in Rylands v Fletcher tort?

Answer 22

Damage caused by escaping fire will rarely qualify because fire is rarely “brought onto” the land - usually it is started by something else

Question 23

4 requirements to succeed in an OLA 1957 claim?

Answer 23

1. D has sufficient control (legal or factual) over the premises to be an OCCUPIER
2. C was a visitor
3. D breached its duty of care
4. C suffered loss (personal injury or property damage) as a result

Question 24

Definition of a “visitor” for OLA purposes?

Answer 24

Anyone for whom express or implied PERMISSION has been given to enter the property

Question 25

What is the extent of the OLA 1957 duty of care?

Answer 25

1. Take reasonable care 2. To see that the visitor will be reasonably safe 3. In using the premises for the purposes for which he is permitted to be there

Question 26

How is the OLA 1957 duty of care modifed for children?

Answer 26

An occupier must be prepared for children to be less careful than adults, taking into account the level of understanding the child should have at their age

Question 27

How is the OLA 1957 duty of care modifed for skilled visitors?

Answer 27

An occupier is entitled to expect that a skiller person in the exercise of his work will APPRECIATE and GUARD AGAINST any SPECIAL RISKS ordinarily incident to that work

Question 28

3 circumstances in which occupier can avoid liability to visitors for work of an independent contractor?

Answer 28

1. D REASONABLY ENTRUSTED work to the IC 2. D took REASONABLE STEPS to ensure IC was COMPETENT 3. D took REASONABLE CARE to ensure the work was carried out to an APPROPRIATE STANDARD

Question 29

When may a visitor become a trespasser?

Answer 29

Where he breaches the permission granted to him by the occupier

Question 30

If an occupier is occupying the premises for business purposes, what two UCTA limitations will apply to his ability to exclude liability by restricting permission?

Answer 30

1. Any attempt to exclude liability for death and personal injury for breaching the DoC will be VOID 2. Any other exclusion will be subject to a test of reasonableness

Question 31

When does an occupier owe a duty of care to trespassers under the OLA 1984 (3 points)?

Answer 31

1. D subjectively has reasonable grounds to believe that the danger EXISTS 2. D subjectively has reasonable grounds to believe that a trespasser is in the VICINITY of the danger 3. The risk is objectively one against which, in all the circumstances, a reasonable occupier may be expected to offer some PROTECTION against

Question 32

To what extent can occupiers restrict their OLA 1984 duty of care?

Answer 32

No scope to restrict the duty of care

Question 33

Contrast the OLA 1957 and 1984 position in relation to warnings/

Answer 33

1957 - Providing a warning does not absolve O from liability unless it was enough to enable the visitor to be REASONABLY SAFE in all the circumstances 1984 - Taking reasonable steps to warn a NON-VISITOR of the danger will discharge the duty

Question 34

What is a complete defence to occupier's liability?

Answer 34

Volenti non fit injuria - where the claimant KNEW OF and UNDERSTOOD the risk of injury yet acted in a way AMOUNTING TO ACCEPTANCE of the injury

Question 35

What is the main purpose of the CPA 1987?

Answer 35

To impose STRICT LIABILITY for DEFECTIVE PRODUCTS causing DAMAGE / PERSONAL INJURY

Question 36

Who are the four classes of person subject to liability under the CPA 1987?

Answer 36

1. Producers 2. Importers 3. Own-branders (not producer but holds himself out as so) 4. Other suppliers (only liable if they cannot identify "up the chain")

Question 37

What is the definition of a defect under the CPA 1987?

Answer 37

Where the SAFETY of the product is not such as persons GENERALLY are ENTITLED to expect at the time it is INTRODUCED TO THE MARKET

Question 38

3 important factors in determining if a product is defective from a safety perspective?

Answer 38

1. Marketing, instructions and warnings 2. Reasonably expected use 3. Time at which the product was supplied by the producer (e.g. old products - wear and tear)

Question 39

Who bears the burden of proving causation in CPA 1987 claims?

Answer 39

C bears the burden of proving causation

Question 40

4 limitations to recoverable damages for defective products under the CPA 1987?

Answer 40

1. Must be PHYSICAL DAMAGE - no economic loss is recoverable 2. If claim is for property damaged, the damaged property must be OTHER THAN the defective product 3. Property damages must be ordinarily intended for, and in fact intended for, PRIVATE USE and NOT BUSINESS USE 4. Any damage caused to property must exceed 275 GBP

Question 41

Six defences under the CPA 1987?

Answer 41

1. Defect resulted from compliance with a STATUTORY REQUIREMENT 2. D DID NOT SUPPLY the product to any other person 3. D did not supply the product IN THE COURSE OF A BUSINESS WITH A VIEW TO PROFIT 4. The product was not defective when FIRST SUPPLIED 5. DEVELOPMENT RISK (scientific and technical knowledge was not such that the producer could be expected to have discovered the defect at the time of supply) 6. Product was only a COMPONENT in a finished product and the defect was not attributable to that component

Question 42

What procedure must be followed in order to exclude liability under the CPA 1987?

Answer 42

Liability CANNOT be excluded or limited by any contract term or notice

Question 43

What is the limitation for CPA 1987 claims (2 points). Exceptions?

Answer 43

1. 3 years from the date the product caused damage OR 2. If the damage was not discoverable, 3 years from the date on which C knew: (i) D's identity (ii) that the damage was attributable to a defect in D's product and (iii) the degree of the damage If D deliberately concealed material facts, time will run from when C ascertains the truth; or in PI cases where court finds it just to do so

Question 44

What is the longstop limitation for CPA 1987 claims

Answer 44

Ten years from the date at which the product was first supplied

Question 45

How can C seek compensation for damage to the product itself?

Answer 45

Via contractual remedies

Question 46

Difference between general and special damages for PI cases?

Answer 46

Special damages - actual pecuaniary loss up to the date of trial General damages - cannot be precisely calculated and so must be assessed at trial

Question 47

What is the test for recovering damages for pain and suffering?

Answer 47

C must have knowledge of his injuries - so a vegetative state claimant may not claim for pain and suffering

Question 48

Purpose of FAA 1976?

Answer 48

Permit dependants of a person deceased due to D's wrongful act to claim against D

Question 49

3 heads of claim under FAA 1976?

Answer 49

1. Statutory bereavement award for pain and suffering 2. Loss of income and services dependency 3. Funeral expenses

Question 50

Limitation period under FAA 1976?

Answer 50

3 years from the date of the death or the date of knowledge of the person for whose benefit the action is brought

Question 51

Two items that should NOT be deducted when assessing damages under FAA 1976?

Answer 51

1. Benefits that accrued as a result of the person's death (e.g. insurance, charitable support) 2. Payments that do not result from the death

Question 52

When can the court order periodic payments in a tort action?

Answer 52

Never - tort can only lead to a lump sum award, as the entire case (covering all causes of action arising from the wrong) must be brought before the court at once

Question 53

What are the 3 limitation periods to keep in mind for tort? Any exceptions?

Answer 53

Non PI cases: 1. SIX YEARS from the date on which the cause of action accrued OR 2. THREE YEARS from the date on which C first had the knowledge required to bring an action PI cases: 3. THREE YEARS from the later of: (i) the date on which the cause of action accrued OR (ii) C first had the knowledge required to bring the action

Question 54

What is a notable statutory exception to time bars in tort claims?

Answer 54

S.33 LA 1980 - court can exercise DISCRETION to disapply 3-year limitation period for PI or death claims if EQUITABLE to do so, having regard to the DEGREE OF PREJUDICE to either party