Tort

Question 1

Can medical professionals break the chain of causation?

Answer 1

Generally not unless actions are palpably wrong. Might material contribute to injury, must be proved on BOP

Question 2

Breach of duty
How is a breach of duty assessed?

Answer 2

• assessed after the event
• court will look at the magnitude of the risk involved and the practicality of taking precautions
• when assessing the magnitude of risk the court will ask 1) how likely is it that harm will occur? and 2) how serious is the potential harm?
• if the activity carries a low risk of harm, C may not be able to establish that the defendant fell below a reasonable standard of care
• the likelihood of harm is assessed in light of the knowledge available at the time.
• when looking at the seriousness of the potential harm, the greater the harm, the more precautions D is expected to take to meet the standard of care
• if activity carries a low risk of harm but if the harm is gonna be very serious they are expected to take precautions
• when looking at whether precautions were practicable the court will balance the practicality of taking precautions against the risk
• the court will also have regard to the social utility of defendants conduct so for example if acting in emergency or rescue there might be justified in taking less precautions.

Question 3

Breach of duty
What is res ipsa Ioquitor?

Answer 3

If there is an absence of an explanation of how the incident occurred the court might be willing to infer a breach of duty from the circumstances

Requirements
- there must be an absence of any explanation for how the incident occurred
- The thing which caused the accident must’ve been under the control of the defendant and
- The accident must be such as would not normally happen if proper care had been taken

If applies, enables the court to draw an inference of negligence, it helps the claimant to prove defendant was in breach of duty can be rebutted by D showing they did exercise reasonable care.

Question 4

Causation
How is causal link between C loss and D breach established?

Answer 4

Three stages
- causation in fact (the but for test modified if multiple causes)
- no intervening acts
- damage not to remote

Question 5

What is the but for test?

Answer 5

But for defendants breach would the harm have occurred

Question 6

When does the but for test apply?

Answer 6

Applies whether there is a single breach of duty

Also applies where there is more than one possible alternative cause for the claimants loss

Question 7

Causation
What test applied where there are two or more alternative causes for loss?

Answer 7

But for test on BOP

Mesothelioma exception

Material contribution & material increase in risk all sufficient

Question 8

Causation
What happens where there are different possible causes that are acting together to cause loss?

Answer 8

Modified test - material contribution
- claimant is only required to prove the defendants breach of duty made a material contribution to their loss
- arises in cases was mesothelioma and dust
- used if impossible for C to prove which source caused loss so can’t say but for

Question 9

Causation
When an injury is divisible, how are damages apportioned?

Answer 9

What an injury is divisible, damages can be apportioned between the defendants, according to the share each of them caused.
- can only recover a portion of damages from each defendant and they must sue all of them to recover in full
- examples of divisible injuries are deafness as it gets worse overtime, broken bones that occur at different times.

Question 10

Causation
How are damages apportioned for indivisible injuries?

Answer 10

Where claimant has suffered a single injury the claimant is entitled to recover his damages in full from either defendants but can only recover once

• By statute the paying defendant may recover from the other, contribution to the damages payable.
• The contribution is assessed in such a way as the court considers just and equitable having regards to each defendants responsibility for the injury.

Question 11

Causation
What happens when a C suffers a single injury and then later suffers a second injury which impacts on the first?

Answer 11

The defendant in the second accident is only liable to the extent that their negligence made the claimants damage worse than already was

Question 12

Causation
When can an act of the claimant break the chain of causation?

Answer 12

When the claimant acts entirely unreasonably, if breaks the chain will recover no damages for subsequent injury or further losses that arise

Question 13

Causation
When will a 3rd party’s actions break the chain of causation?

Answer 13

Will only break chain if it is not reasonably forseeable

Question 14

Causation
When will intervening natural event break the chain?

Answer 14

When unforeseeable

Question 15

Causation
What is the test for remoteness?

Answer 15

The court must ask was the claimants damage a reasonably foreseeable result of the defendants negligence. If the answer is no then it’s not reasonably foreseeable and therefore not liable.

Exceptions
- eggshell skull if the claimants pre-existing condition that causes the effect to be more severe, still liable, take victim as find them
- similar in type rule, means that this the harm the claimant suffered is reasonable foreseeable but the manner in which occurred as unforeseeable, still liable

Question 16

Defences to negligence
What is contributory negligence?

Answer 16

Partial defence
- failure by the claimants to take reasonable care for their own safety which contributed to the harm
- does not need to be a cause of the accident. Just contribute to the damage
- by statue damages are reduced to an extent that the court considers just an equitable having regard to the claimant share responsibility so reduced by percentage.

Question 17

Defences to neg
When does voluntary assumption of risk apply?

Answer 17

Complete defence to show the claimant voluntarily assumes the risk of a defendants negligence

For to apply
- The claimant must have full knowledge of the risk and
- claimant must have voluntarily assumed the risk
- statute prevents the defence from applying to passengers in the road traffic accident.

Question 18

Defences to neg
Can liability be excluded?

Answer 18

Subject to statutory controls
- when the defendant is acting in the course of business liability for death or personal injury arising from negligence can never be excluded under the unfair contract terms act and consumer rights act and
- liability for other damage caused by negligence can only be excluded if it’s satisfies a requirement of reasonable (UCTA) or fairness (CRA)

Question 19

Pure economic loss
What is it?

Answer 19

• Damage to property that does not belong to the claimant
• the cost of damage to defective product itself which is acquired by the claimant
• financial loss which does not flow from property damage or injury to person

Question 20

Pure economic loss
Is it recoverable?

Answer 20

Generally no duty of care is owed to avoid pure economic loss

Exception
- where it’s caused by negligent statement and there is a special relationship between the claimant and defendant

Lost that is consequential on other damage is recoverable under the ordinary rules of negligence but it must be consequential on physical injury or damage

Includes loss of earnings due to item being damaged or being off work cause injured.

Question 21

Pure economic loss
If property is damaged that belongs to another can claimant recover for loss?

Answer 21

Germany not recoverable as it is pure economic loss as the defendant did not owe the claimant of duty of care

Question 22

Pure economic loss
Is damaged to a defective product itself recoverable?

Answer 22

Generally not recoverable as regarded as pure economic loss

May be recoverable under a contract, damages for breach of contract can cover the cost of defective product but if acquired the product by gift has no contract may not have a contract remedy

Question 23

Pure economic loss
Can property damage caused by defective product be recovered?

Answer 23

Yes, if the defective product causes damage to other property

• for example an oven is installed and overheats and caused the fire that destroys the oven itself and the kitchen. The claimant cannot recover the oven but can recover the kitchen furniture as that’s not pure economic loss.

Question 24

Pure economic loss
When can pure economic loss as a result of a negligent misstatement be recovered?

Answer 24

Maybe a claim under contract if defendant was in breach of the contract. Generally no remedy in tort but there is an exception:

• Where there is a special relationship between the claimant and defendant.

Arises if the following are satisfied
- the advice is required for a purpose which the defendant knows.
- the defendant knows that the advice will be communicated to the claimant for that purpose
- the claimant is likely to rely on the advice without independent enquiry

The claimant must actually have relied on the advice and it must be reasonable for them to do so.

Involves: D assumption of responsibility and reasonable reliance by C

Question 25

Pure economic loss Once it has been established that a duty was owed due to a special relationship, what else must be shown to be able to recover?

Answer 25

Usual rules of negligence apply. - C needs to show defendant fell below reasonable standard of care - C must show that D’s breach of duty was the cause of the claimants loss applying causation in fact and causation in law. - damage was not too remote and - there are no defences.

Question 26

Pure psychiatric harm What is pure psychiatric harm?

Answer 26

Harm caused to the claimant without any physical impact May be caused by the shock of being placed in danger or the shock of witnessing harm to someone else might be a psychiatric condition or a shock induced physical condition.

Question 27

Pure psychiatric harm Is it recoverable?

Answer 27

What is victim suffers physical injury and there is consequential psychiatric harm that is recoverable. There are no special rules, the duty of care in respect of physical injury also extends to consequential psychiatric harm.

Question 28

Pure psychiatric harm What types of victims are there?

Answer 28

Primary victim - Someone who is in the actual area of danger created by negligent act - Primary victims are owed duty of care in respect to psychiatric harm without visible impact if there was a foreseeable risk of physical harm to them, even though that didn’t happen - no requirement for psychiatric harm to be foreseeable Secondary victim - someone who is outside the actual area of danger, typically bystanders, that are not in a danger by themselves Duty of care if the following is satisfied - Must be reasonably foreseeable that a person of normal fortitude in the position of the claimant would suffer a psychiatric illness in the circumstances - The secondary victim must’ve had closed ties of love and affection with endangered by the defendants act - The secondary victim must’ve been present at the accident or the immediate aftermath and - The second secondary victim must have witnessed events with their own unaided senses

Question 29

Pure psychiatric harm What are the limits on duty of care?

Answer 29

For both primary and secondary victims, the duty of care is limited to psychiatric harm which is medically recognised for example PTSD or depressive disorder or anxiety disorder but must be medically diagnosed, anxiety, alarm or stress doesn’t count Sudden shock - for secondary victims, no duty of care is owed unless the harm is caused by a sudden shocking event, watching harm happen to someone gradually eg watching someone suffer in hospital over a time is not covered. - primary victims, recent case suggest that there is no requirement for sudden shock in cases of negligence during labour. Mother is classed as a primary victim as she was exposed to the danger created. Not sudden shock, because the harm was caused over extended period both during the birth and the hours afterwards, but it can be held that they are owed a duty in respect of pure psychiatric harm Doesn’t apply where an employee suffers psychiatric illness resulting from stress at work over a prolonged period, duty of care may still be owed. Sudden shock not required here.

Question 30

Employers liability What is the duty of care expected of an employer?

Answer 30

An employer has a duty to take reasonable care for the safety of their employees. Includes: - Employer must take reasonable care to provide safe machinery and equipment, including protective clothing and equipment - The employer must take reasonable care to provide a safe place of work - The employer must take reasonable care to ensure that fellow staff with who the employee works with our competent, this extends to selection of staff and provision of training - The employer is duty extends to providing a safe system of work, includes adequate supervision to ensure the implementation and enforcement of systems and appropriate risk assessments - the requirement for a safe system of work also covers situation whether employees suffers psychiatric illness caused by stress as long as reasonably foreseeable risk. The duty requires reasonable steps to respond to risk.

Question 31

Employers liability Can the employers duty be delegated?

Answer 31

No it is personal to the employer and cannot be delegated. The task can be delegated but the duty to take reasonable care cannot. Employer must ensure that reasonable care is taken in their actions directly and also ensure that reasonable care is taken by others If the person who the task is delegated to fails to take reasonable care and the employers duty is breached also.

Question 32

Employers liability What is the standard of care expected?

Answer 32

The standard of care is that of a reasonable employer. - When assessing whether the employer met the standard of care the court will considered the magnitude of risk and the practicality of taking precautions - Common practice of other employers in the same field is relevant, but it’s not determinative - The employer’s duty is owed to each employee individually, so the individual characteristics of each employee are relevant to the precautions which the employer needs to take to meet the standard. Maybe different for different employees for example if one is blind in one eye - The Employers Liability Defective Equipment act applies when an employee is injured in the course of employment by defective equipment provided by the employer, provided that the defect is attributable to fault on the part of some third-party, the employer is also deemed to be negligent. The employee must establish that there was a defect in the equipment and the defect was caused by the fault of someone if they can do then may prove breach of the employer.

Question 33

Employers liability What defences are available?

Answer 33

Usual defences apply - Voluntary assumption of risk as a complete defence the employee must’ve fully appreciated and voluntary consented to the actual risk but it’s difficult to establish an employment situation as there is usually no free choice Contributing negligence - damages may be reduced when the claimant fails take reasonable care for their own safety and this contributed

Question 34

Vicarious liability What is vicarious liability?

Answer 34

It is the liability of one person for a talk committed by another, so it’s liability without fault

Question 35

Vicarious liability When are employers vicariously liable for the tort committed by their employees?

Answer 35

Yes, an employer may be vicariously liable for the tort of the employee. Can arise where the claimant is external to the employers business but can also arise where one employee commits a tort against another employee. To be vicariously liable, the employee needs to be an employee of the employer, this can be disputed and so the status must be determined. The court will look at the economic reality of the situation so this will include: - whether personal service eg paid salary or carry out work personally? - does employer have right to control how work being done? - who owns tools/uniform? - who takes the financial risk and the chance of profit? - what are the contractual provisions ? Akin to employment? Label irrelevant. Must be in the course of employment. - Court must be satisfied that there was a close connection between the tort and the work the employee he was employed to do. - The court will ask, was the tort so closely connected with a task that it would be fair and just to hold the employer liable? - the court will ask what functions or field of functions have been entrusted by the employer to the employee and was there a sufficient connection between the position in which they were employed and their wrongful conduct to make it right for them to be held vicariously liable.

Question 36

Vicarious liability Can I employer be vicariously liable for the negligence of the employee?

Answer 36

Yes, an employee may remain in the course of employment even when they carry out the work they were authorised to do negligently.

Question 37

Vicarious liability Can the employer be liable for the criminal actions of an employee?

Answer 37

Yes, if remain in the course of employment. if the tort was also a criminal act - the test depends on the closeness of the connection between the wrongful act and the task which the employee was employed to do

Question 38

Vicarious liability Can the employer be found liable if an employee disobey their instructions?

Answer 38

Maybe liable depends if this takes the employee outside the course of employment - depends on the effect of the prohibition - if a prohibition limits the scope of employment a breach would put the employee outside the course of employment - if prohibition only limits the manner in which the employment is to be carried out, it would not put them outside the course of employment

Question 39

Vicarious liability If an employee deviates from an authorised journey and commits to tort is the employer liable?

Answer 39

Maybe, if the deviation takes the employee outside the course of their employment then not liable When takes outside - fact of degree, if the deviation is in time or distance far enough it may indicate the employee has started a separate independent journey for their own - if minor will remain in the course employment

Question 40

Vicarious liability Are employers liable for the acts of independent contractors?

Answer 40

Generally no but an employer engaging an independent contractor may become personally liable (rather than vicariously liable) for a tort committed by the independent contractor. - this may arise when the employee is in breach of their own non delegable duty of care or the employer is in breach of their own duty to take reasonable care when selecting a competent contractor

Question 41

Vicarious liability What is considered a relationship akin to employment?

Answer 41

Not an employee but have a relationship akin to employment. Relationship is sufficiently similar to employment to make it fair just reasonable to impose vicarious liability. Court will look at: - whether the tort was committed as a result of an activity undertaken by the tortfeasor on behalf of the defendant - if the tortfeasor’s activity is an integral part of the defendants business activities and - if the defendant created the risk by assigning the activity to the tortfeasor. - court may also consider whether D has more means to compensate victim and degree of control Close connection between relationship and tort committed also required.

Question 42

Remedies for personal injury and death What can be recovered by living claimant?

Answer 42

Damages the object of these are to place the claimant in as far as money can do so the same position they would’ve been had it if not occurred. Has a duty to mitigate by taking reasonable steps to mitigate their loss Can recover for pecuniary losses which are financial losses as a result of the injury caused by the defendant. These can be several types: - loss of income - loss of future income - expenses Can also recover for non-pecuniary losses which are non-monetary losses such as pain and suffering and loss of amenity Both future and past damages are available Can also recover damage to property - will be based on the cost of replacement if it’s destroyed - damages be based on the difference in value which is often the cost of repair

Question 43

Remedies for personal injury and death How are loss of passed income and loss of income determined?

Answer 43

Lost of past income - is capable of precise calculation as this has occurred by the time of settlement is made based on claimants net loss of wages. This means tax and national insurance are deducted leaving in net figure also takes account of any sick pay Loss of income - these are awarded as one lump sum assessed at the time of trial not capable of precise calculation If claimant is unable to return to work - the amount will be assessed on the evidence available by taking the claimants pre-annual income (multiplicand) and multiplying it by the number of years of lost income (multiplied). - Adjustments are made to reflect the fact that it is a lump sum and under the contingencies of life at a chance that the claimant could lose their job at some point in the future. If the claim is limited in return to work - same method is used but the difference in the original salary before the accident and the new reduced salary is taken into account If the claim has a shorten life expectancy, can recover for the lost years - when it’s calculated reduction is made to reflect the amount which the claimant would’ve spent on living expenses during those last years

Question 44

Remedy’s for Personal injury and death What can the claimant recovery in term of expenses?

Answer 44

Can recover past expenses which are capable of precise calculation and future expenses which are assessed by the court. - includes cost of care already had, can cover the cost paid for such care and - can also recover the cost of necessary medical treatment. - The claimant is not expected to receive treatment by the NHS, can be private, defendant is barred by statute from arguing it was not reasonable to incur the cost of private treatment

Question 45

Remedies for personal injury and death Can a claimant recovered for a period when they are unconscious?

Answer 45

No, as did not experience pain and suffering so no pain or suffering recoverable for that period but if suffers loss of amenity caused by the injury damages are allowed to compensate for this loss

Question 46

Remedies for personal injury and death what are special damages and what are general damages?

Answer 46

Special damages are those that can be precisely calculated at the time of settlement or trial, can include past losses of earnings and past expenses General damages are those which need to be assessed by the Court, not capable of precise calculation

Question 47

Remedies to personal injury and death What can be recovered when the claimant has died?

Answer 47

Two causes of action may rise 1) If the claimant dies, their existing cause of action may continue for the benefit of their estate 2) If the victim dies, a new course of action may arise with the benefit of their dependants and for bereavement

Question 48

When will an existing clause of action survive for the benefit of the claimants estate?

Answer 48

If claimant suffers personal injury and dies before completing a claim, the claim will continue. The estate will be able to recover damages for pain suffering and loss of income up to death, expenses and losses of earnings up to death - no damages for the period after death and there’s no claim for death itself - if dies instantly with no pain no damage to property and no loss of earnings as no actual damage and no claim - Any contributory negligence will be taken into account and damages may be awarded in the same way - the cause of death is irrelevant to whether the claim continues or not claim do not survive. - on death of the claimant, cause of action against them may survive and be made against their estate.

Question 49

Remedies for personal injury and death When can damages be reclaimed by dependants?

Answer 49

New course of action which arises for dependants. Only entitled if deceased would have been able to bring a claim had they survived and contributory negligence may also reduce the amount of damages To be entitled to damages for loss of dependency: - The claimant must be eligible by statute, which includes spouse or civil partner, cohabiting partner, parents if the deceased was under 18 and never married, and children of deceased - and must’ve been financially dependent on deceased

Question 50

Remedies for death When can damages be claimed for bereavement?

Answer 50

The amount is fixed by statute - only spouse, civil partner, cohabiting partner or parents of deceased was under 18 and never married. - Children are not entitled to bereavement damages for death of parent nor are parents of child aged over 18

Question 51

Remedies for death Are funeral expenses recoverable?

Answer 51

Recoverable if tort caused D’s death

Question 52

Occupiers liability What dangers are covered?

Answer 52

Danger due to state of premises or things done or omitted to be done on them. Apply to condition rather than activities.

Question 53

Occupiers liability What is the duty of care imposed on occupier in respect of lawful visitors?

Answer 53

Occupiers liability act 1954 - duty owed under statue applies to all lawful visitors - duty to take such care as it reasonable under the circumstances to see that the visitor will be reasonable safe in using the premises for such purposes as they have been invited or permitted - extends to person and property Standard of care - reasonable care - court looks at magnitude v practicability of taking precautions Children may be less careful than adults so more care may need to be taken Visitors entering premises in exercise of their calling is expected to guard against special risks incidental to calling

Question 54

Occupiers liability Are warnings sufficient to discharge duty owed to visitors?

Answer 54

May not be enough, will need alternative route or way to show safe

Question 55

Occupiers liability Can the duty to lawful visitors be excluded?

Answer 55

Can be excluded by contract or notice Business cannot exclude liability for death or PI arising from negligence Any other exclusion must be reasonable Wording must be clear and brought to attention before contract made or risk encountered

Question 56

Occupiers liabilities What defences are available?

Answer 56

Exclusion of liability (subject to statutory controls) Effective notice (subject to being clear and brought to attention) Contractual exclusion (subject to incorporation) Non contractual exclusion Voluntarily assumption of risk Contributory negligence

Question 57

Occupiers liability When is duty is owed to a trespasser?

Answer 57

Occupiers liability act 1984 Duty owed if: - occupier aware or ought to be of danger - occupier aware that the trespasser may come into vicinity of the danger (or ought reasonably to be aware) - danger is one which would be reasonable to expect occupier to offer protection

Question 58

Occupiers liability What duty is owed to a trespasser?

Answer 58

Duty is to take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury by reason of danger Doesn’t cover property damage Narrower.

Question 59

Occupiers liability Are warnings sufficient to discharge the duty to trespassor?

Answer 59

Act says that may be able to discharge by taking such steps as are reasonable to give warning of danger or discourage from taking risk.

Question 60

Defective products What claims might a claimant have in relation to defective product?

Answer 60

May have a claim under contract law under Sale of goods act from the implied term Liability for under contract doesn’t depend on proving the supply was at fault. Restrictions for privity of contract May have a claim in negligence but difficult to establish

Question 61

Defective products How can a claimant establish a claim in the tort of negligence?

Answer 61

Must establish: Duty of care Breach of duty Causation Duty of care - manufacturer owed duty of care to end consumer, arises where: - manufacturer puts product into circulation in end form which intended to reach consumer and - no reasonable expectation of intermediate examination Consumer - duty owed to anyone who manufacture could reasonably foresee is likely to be affected Manufacture is person who manufactured it. Retailer generally owes no duty but may if reasonably ought to have inspected the product for defects before supplying it. Depends on facts of case, no duty to inspect where packaged in such a way that cannot be examined. Extends to personal injury caused by product and consequential economic loss arising from injury. Doesn’t cover damage to property itself but does cover damage caused by defective product to other items. Breach established in usual way Proving negligence can be tricky as hard to show fault during process or due to design. Hard to obtain evidence. Court may infer breach in existence of defect itself. Hard to prove design fault as need to prove designers fell below reasonable standard of care Causation usual Defences usual

Question 62

Defective products What does the consumer protection act 1987 do?

Answer 62

Creates regime of strict liability for damages caused by defective products Applies where damage caused by defect in product. No need to prove that arose due to fault of defendant Anyone who suffers damage is a potential claimant

Question 63

Who is a defendant under CPA 1987?

Answer 63

May be liable: - producer of product - anyone who held themselves out as producer of product by putting own name or make on it ‘own branded’ - any person who imported the product in order to supply in the course of business If 2 or more liable, jointly and severally liable

Question 64

When is supplier a potential defendant under CPA?

Answer 64

- Where C may request supplier to identify producer (or own brander or importer) - The request must be made within reasonable amount of time - It is not reasonably practicable for C to identity those persons independently and - the supplier fails to identity producer within reasonable period.

Question 65

What is a defect under CPA?

Answer 65

Defective if safety not as persons generally entitled to expect. Takes into account all circumstances including: - instructions and warnings included - product packaging and purpose for which marketed - what might reasonable be expected to be done with the product and - time when the product was supplied

Question 66

What is recoverable under CPA?

Answer 66

Death or PI or damage property Excluded - damage to product itself - damage to business property - property damage under £275

Question 67

What defences are there to a claim under CPA?

Answer 67

No defect when put into circulation Defendant didn’t supply product in course of business - defendant not acting in course of business when supplied and - defendant wasn’t producer of product or defendant wasn’t acting with view to profit State of art defence - defence for D to show that stage of scientific and technical knowledge at time supplied wasn’t what might be expected to discover defect - Narrowly interpreted - where products carry a know risk of defect, if contains defect and causes damage, producer can’t rely on it Contributory negligence Cannot be excluded

Question 68

Breach of statutory duty What acts impose civil liability?

Answer 68

Occupiers liability acts Consumer protection act Excluded from Health and safety at work If silent, court considers questions

Question 69

Breach of statutory duty What does the court look at when deciding whether to impose a duty?

Answer 69

Did Parliament intend statute to give rise to civil claim? - court will look at wording of act and whether duty was imposed for protection of limited class of people and whether statute provides for any other means or enforcement or remedy If satisfied statute can give rise to civil claim, C must satisfy following elements - do they fall within class of people protected by statutory duty? - was the statutory duty breached? - was the damage suffered of a kind which the statute was designed to prevent? Then must establish causation

Question 70

Public nuisance What is public nuisance?

Answer 70

Matters which affect a class of public Unreasonable interference with comfort and convenience of class of public Can include damage to property and PI Examples: - obstruction of highways - offensive trade - quarry blasting

Question 71

Public nuisance Who can sue?

Answer 71

Individual of affected class can sue but can only bring a claim if suffered particular damage over and above damage suffered by class in general Attorney General representing public can also bring an action on behalf of class affected. Objective = injunction.

Question 72

Private nuisance What is private nuisance?

Answer 72

Unlawful interference with C’s use and enjoyment of the land. Unlawful = substantial and unreasonable Must be continuing state of affairs. Usually to do with conflicting uses of land which interferes with C’s use of land Damage is required. May be: - physical damage to land eg by vibrations or flooding - amenity damage such as noise dust smell, personal discomfort. - encroachment onto land eg overhanging branches or tree roots

Question 73

Private nuisance Who can be sued?

Answer 73

Creator of nuisance - even if no longer in occupation Occupier of land where nuisance exists - if created by occupier - or if created on their land by employees or others under control - independent contractors where the activities engaged in carries special damage of creating a nuisance - can even be liable for nuisance created by trespassor or natural event if adopts or continues nuisance - occupier adopts nuisance if make use of thing that constitutes nuisance for their own use - continues nuisance if once know or out to know about it, fail to take reasons steps to deal with it.

Question 74

Private nuisance Who can sue?

Answer 74

Must have proprietary interest in land affected.

Question 75

Private nuisance What is reasonable?

Answer 75

Interference must be unlawful and unreasonable. Court considers reasonableness of interferences not whether D took reasonable care Court has to consider what is reasonable. Range of factors including: - intensity and duration - character of neighbourhood (if due to damage or encroachment, not take into account) - abnormal sensitivity of claimant not really taken into account - malice - actionable makes unreasonable

Question 76

Private nuisance What damages are recoverable?

Answer 76

Must be reasonably foreseeable. If not forseeable, not liable.

Question 77

Nuisance What is/isn’t a defence to nuisance?

Answer 77

Defences Prescription. - Must be continuously carried on for at least 20 years. Must have been actionable as private nuisance but no action undertaken. Statutory authority - may be permitted by statute. - remedy may be available under statute Not a defence: Planning permission Coming to nuisance

Question 78

Nuisance What remedies are there for nuisance?

Answer 78

Injunction - discretionary. Damages - compensatory Abatement - self help remedy. Must do no more than necessary to abate. Need to give notice if entering land.

Question 79

Rylands v Fletcher What is it?

Answer 79

Imposes strict liability where there is an escape of dangerous thing from D’s land, in the course of a non-natural use of the land. Isolated event is sufficient Conditions: - defendant brings onto land something likely to cause harm if escapes - defendant was engaged in non natural use of land and - the thing escapes and causes damage

Question 80

Rylands v Fletcher Does the thing gathered need to be dangerous?

Answer 80

No, just needs to cause harm if escapes. Eg Can be water.

Question 81

Rylands v Fletcher What is non natural use of the land?

Answer 81

The defendant must be engaged in a special use of the land which carries an increased risk of danger to others

Question 82

Rylands v Fletcher Is it strict liability?

Answer 82

Yes, no need to show the defendant was at fault

Question 83

Rylands v Fletcher What damages are recoverable?

Answer 83

The damage suffered must be of a kind that was reasonably foreseeable consequence of the escape if not to remote and not liable

Question 84

Rylands v Fletcher What defences are available?

Answer 84

Unforeseeable act of stranger Act of God Consent of claimants, expressly or impliedly given to the accumulation of the substance in question Contributory negligence Statutory authority

Question 85

What is the limitation period for PI?

Answer 85

3 years from date of accrual or date of knowledge

Question 86

What are the exceptions to the but for test?

Answer 86

Multiple potential causes - material contribution test (mesothelioma exception) Multiple sufficient causes - successive harm Lost chances

Question 87

What test is used for mesothelioma cases?

Answer 87

Several employers - employers all jointly and severally liable as materially increased risk Compensation act 2006 - applies only to mesothelioma cases, can recover from all responsible persons in breach, joint and severally liable One exposure - material increase in risk so liable Mesothelioma act 2014 - Gov fund If lung cancer not mesothelioma, can recover for any or all employers who subjected to negligent exposure but damages apportioned

Question 88

Who can make a claim for bereavement damages?

Answer 88

Fixed by statute only spouse or civil partner, cohabiting partner who is living with them for two years immediately prior to death or parents of the deceased if they were a minor and never married

Question 89

Who can make a claim for loss of dependency?

Answer 89

The claimant must be: - an eligible dependent, as defined by statute which includes spouse, cohabiting partner plus children, grandchildren, grandparents, siblings, dependents - and must’ve been financially dependent on the deceased Can recover loss of income and loss of dependency, funeral expenses Action must be bought within 3 years from date of death or date of knowledge of action