1
Q
Failing to act when a person is in danger does not give rise to liability - what are the exceptions
A
A special relationship (parent/child)
3rd parties
Voluntarily assumes responsibility
2
Q
A D will not owe a duty for 3rd parties but what are the exceptions;-
A
- Special Relationship
- Control over 3rd party
- D created a danger
- D failed to stop 3rd party from continuing a danger
3
Q
What does voluntary assumption mean and when does a duty arise if they do
A
A party assumes responsibility for another - if they do they owe a duty not to make the situation any worse
4
Q
Product liability and defective products what does product mean
A
The actual product and can extend to containers packaging and instructions
5
Q
Consumer Protection Act covers what …
A
Defective products
Strict liability
6
Q
Defect products from the retailer is usually covered how?
A
By contract law under the CRA
THR CONTACT BETWEEN PARTIES ON THE PURCHASE
7
Q
What is the two stage test for establishing a BREACH in tort
A
- How a person should have behaved in the Ds position - matter of law
- How the D actually behaved? Matter of fact
8
Q
What are the 3 criteria in Caparo
A
- Was there a Reasonable foreseeability of harm to C
- Was there sufficient proximity
- Fair Just and Reasonable to impose a DOC
9
Q
What are some established DOCs
A
Road Users
Employee and employer
Manufacturer and consumer
Doctor and patient
Solicitor and client
10
Q
Three steps to establishing a DOC in negligence
A
- Is there an established DOC
- Is there any case law which can cover the relationship between C&D
- Novel cases need 3 steps in Caparo
11
Q
What does Negligence require
A
DOC
BOD
CAUSATION
REMOTENESS
LOSS/Damages
12
Q
What 3 things are required for RES IPSA LOQUITUR
A
D must be in control
Would not have occurred without some negligence/proper care
Cause of accident unknown
13
Q
Caparo Industries plc v Dickman
A
Caparo Industries plc is a British industrial company with a global presence. Founded in 1968 by Lord Swraj Paul, its primary focus is on the steel industry, encompassing the design, manufacturing, and marketing of steel and niche engineering products.
The company operates internationally from over 40 sites worldwide, serving customers across various sectors. Its business interests include:
* UK: Property & Leisure
* North America: Tubing, Trailers, Property
* India: Automotive Components, Precision Engineering
* United Arab Emirates: Distribution
Historically, Caparo Industries plc was involved in takeovers and had significant fixed assets and investments.
Caparo Industries plc v Dickman [1990] UKHL 2:
While the company itself is involved in manufacturing and engineering, the name “Caparo” is most famously associated with a landmark case in English tort law: Caparo Industries plc v Dickman [1990] 2 AC 605.
Background of the Case:
Caparo Industries plc relied on audited accounts of Fidelity plc when making a takeover bid for the company. The accounts, prepared by Dickman (the auditors), showed a pre-tax profit. However, after the takeover, Caparo discovered that Fidelity had actually made a significant loss. Caparo sued Dickman for negligence, claiming that the auditors owed them a duty of care in preparing the accounts.
The House of Lords’ Decision and the “Caparo Test”:
The House of Lords ultimately rejected Caparo’s claim, establishing a three-part test for determining whether a duty of care exists in negligence cases, particularly in novel situations. This test, often referred to as the “Caparo Test”, requires the claimant to demonstrate:
* Reasonable Foreseeability of Harm: The damage suffered by the claimant must have been a reasonably foreseeable consequence of the defendant’s conduct.
* Example: A driver speeding through a residential area can reasonably foresee that they might cause an accident and injure someone.
* Proximity of Relationship: There must be a sufficiently close relationship between the claimant and the defendant. This goes beyond mere foreseeability and considers the nature of the interaction or connection between the parties.
* Example: A doctor has a proximate relationship with their patient. A manufacturer has a proximate relationship with the end consumer of their product.
* Fair, Just, and Reasonable to Impose a Duty: It must be fair, just, and reasonable for the law to impose a duty of care on the defendant in the specific circumstances. This element allows the courts to consider public policy implications and prevent the imposition of liability in inappropriate cases.
* Example: While harm might be foreseeable and there might be a degree of connection, a court might not find it fair and reasonable to impose a duty on a public authority to prevent all crime.
Significance of the Caparo Test:
The Caparo test became a cornerstone of the law of negligence in the UK and is used by courts to determine the existence and scope of a duty of care in various situations. It moved away from a broader, more expansive approach to duty of care and emphasized a more cautious and incremental development of the law.
Recent Developments:
More recent case law, such as Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, has clarified that the Caparo test is most relevant for genuinely novel situations. In cases falling within established categories of duty or closely analogous to them, the existence of a duty is usually determined by reference to precedent.
14
Q
Strict liability is imposed for what under the Employes Liability Act 1969
A
Defective Equipment
15
Q
What are the 3 things needed for vicarious liability
A
Individual an Employee not an IC
Tort committed
Within the course of their employment
16
Q
What are the 3 tests to determine if an employee is an employee or an IC in vicarious liability
A
- Integration test
- Control test
- Economic reality test
17
Q
Vicarious liability (employed)
A
A relationship akin to employment is liable
The tortious act must be sufficiently closely connected to employment
18
Q
Hedley Byrne case
A
The case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 is a landmark decision in English tort law, primarily for establishing the principle of negligent misstatement and the recoverability of pure economic loss in certain circumstances.
Here’s a breakdown of the case:
Facts:
* Hedley Byrne, an advertising agency, was considering placing large advertising orders for a client, Easipower Ltd. They were personally liable for the costs of these orders.
* To assess Easipower’s creditworthiness, Hedley Byrne asked their bank to inquire with Easipower’s bank, Heller & Partners.
* Heller & Partners provided a positive credit reference for Easipower, but crucially, it included an express disclaimer stating that the information was given “without responsibility on the part of this Bank or its officials.”
* Relying on this favorable reference, Hedley Byrne placed orders for Easipower. Easipower subsequently went into liquidation, causing Hedley Byrne to suffer significant financial losses (around £17,000).
* Hedley Byrne sued Heller & Partners for negligence in providing the misleading reference.
Outcome and Significance:
While Hedley Byrne ultimately lost the case on the specific facts due to the presence of the disclaimer, the House of Lords made highly significant pronouncements (obiter dicta) that fundamentally changed the law of negligence:
* Recognition of Negligent Misstatement: Prior to Hedley Byrne, it was generally difficult to claim for purely financial loss caused by a negligent statement unless there was a contractual relationship. The House of Lords held that a negligent, though honest, misrepresentation (oral or written) could give rise to an action for damages for economic loss in tort.
* Duty of Care for Pure Economic Loss: The case established that a duty of care could arise in situations where a “special relationship” of trust and confidence exists between the parties, even in the absence of a contract. This was a significant departure, as pure economic loss (financial loss not arising from physical damage) was generally not recoverable in tort.
* “Assumption of Responsibility” Principle: The key element identified by the House of Lords for this “special relationship” was the voluntary assumption of responsibility by the party giving the advice or information, coupled with reasonable reliance on that advice by the recipient.
* This means that if someone with a special skill undertakes to apply that skill for the assistance of another, and they know or ought to know that the other person will rely on their skill and judgment, then a duty of care will arise.
* Effectiveness of Disclaimers: The case also clarified that a clear and effective disclaimer could negate the assumption of responsibility, thereby preventing a duty of care from arising. In Hedley Byrne’s case, the disclaimer saved Heller & Partners from liability.
In summary, Hedley Byrne v Heller is crucial because it:
* Paved the way for claims in negligence for pure economic loss caused by negligent statements (negligent misstatement).
* Introduced the concept of a “special relationship” based on the assumption of responsibility and reasonable reliance.
* Highlighted the importance of disclaimers in limiting liability for advice given.
This case has had a profound impact on professional liability, particularly for those who provide advice or information in a professional capacity, such as accountants, lawyers, and financial advisors. It means that even without a contract, professionals can owe a duty of care to those who reasonably rely on their expertise, potentially leading to liability for economic losses.
19
Q
What are the necessary elements to a successful negligence claim
A
DOC
BOD
Causation
Remoteness
Loss and damage
20
Q
What are the two approaches as to whether a DOC exists
A
Caparo 3 stage test (new category)
Reasonable foreseeability
Proximity
Fair Just & Reasonable
Firstly court will look at
Incremental & analogy
If a previous precedent exists can it be built upon this will be used first
21
Q
What test is used for assessing the general standard of care
A
Reasonable person test
22
Q
What does an established duty of care mean
A
Categories of relationships where a DOC automatically exists
23
Q
What did Donoughue v Stephenson establish
A
The neighbour principle
You must take reasonable care to avoid acts or omissions that you can reasonably foresee would likely injure your neighbour
Those so closely and directly affected by my act
24
Q
General rule for Omissions in negligence
A
General rule is there is no positive duty to act I.e failing to act
25
Exceptions for an omission where liability arises for failing to act
D exercises Control over C
D assumes responsibility for C
D creates a dangerous situation
26
Is there a General DOC to the acts of 3rd parities
No the law does not recognise a duty to prevent other people from causing harm
27
What are the exceptions where liability would arise for 3rd parties (4)
Special relationship between parties
I.e decorator should lock Cs door
Special relationship between D and 3rd party (control)
Creating a dangerous situation
Failing to prevent a danger
28
What is a DOC
An obligation by D to C to avoid causing the C loss or damage
29
What 3 ways can a DOC established
With established relationships
Incremental and analogous
Caparo 3 stage test
30
What does it mean when a breach of duty has occurred
The Ds behaviour falls below the standard of care required by law
31
What are the 3 standards of care used by the court for a breach
General
Professional
Special
32
What is the general standard of care owed by a D
Objective test - what the reasonable man would have done
33
What is the professional standard of care test owed in negligence
Ds with a skill or profession will be judged by a person with the same skill or profession
34
What did the Bolam test establish in negligence
A doctor would not be deemed to have breached their DOC if they had acted in accordance with a COMPETENT BODY OF MEDICAL OPINION
35
What are the special standards of care used to apply different standards
Children - those of the same age
Sporting activities- duty owed where there is a reckless disregard for safety
36
Factors court will consider when deciding a breach has occurred due to standard of care
Cost of precaution
Social value
Likelihood of harm
Seriousness of injury
37
What is Res Ipsa Loquitor (3)
The thing speaks for itself
Control of what caused the damage
Damage would not have occurred without negligence
Cause of damage must be unknown
38
Can criminal convictions be used on civil cases
Yes under the civil evidence act if the offence D is convicted involves negligent conduct
39
Factual causation what test is used in negligence
But for test
40
What are the exceptions to the but for test factual causation
Multiple potential causes (consecutive)
Multiple sufficient causes (concurrent)
Lost chance
41
What is multiple potential causes an exception to the but for test factual causation
Where there is more than one cause of Cs harm - competing causes
It is the D whose breach materially contributed/increased the risk or ham who will be liable
Competing causes if the percentage for each is lower than 51% no liability
If D materially contributed when more than one cause - guilty
If D materially increased the risk of harm ~ guilty
42
What is multiple sufficient causes an exception to the but for test factual causation
More than one negligent D
43
What is lost chance an exception to the but for test factual causation
"Lost chance" in tort law is a complex and often debated concept, particularly in the UK. It concerns situations where a defendant's negligent act or omission doesn't directly cause a definite injury or loss, but rather deprives the claimant of a chance to achieve a better outcome or avoid a worse one.
To understand it, let's first quickly recap the general principle of causation in tort, specifically negligence:
* "But for" test: The claimant usually has to prove that "but for" the defendant's breach of duty, the harm would not have occurred. This is a high bar – the claimant must prove causation on the balance of probabilities (i.e., it was more likely than not that the defendant's actions caused the harm). If there was a 51% chance the harm was caused by the defendant, the claimant gets 100% of the damages. If it was 49%, they get 0%.
The "Lost Chance" Dilemma:
The "lost chance" doctrine arises when applying the strict "but for" test seems unfair or impossible, particularly when the outcome depends on:
* Hypothetical actions of a third party: What would someone else have done?
* Uncertain future events: What would have happened in the future?
* Medical uncertainties: What was the chance of recovery if treatment had been different?
In these scenarios, it might be impossible to prove on the balance of probabilities that the defendant's negligence caused the ultimate bad outcome, but it's clear their negligence removed an opportunity for a better outcome.
How "Lost Chance" Works (and Doesn't Work) in UK Tort Law:
The UK courts have taken a somewhat restrictive approach to "loss of a chance" in tort, distinguishing between different types of loss:
1. Economic/Commercial Lost Chances (where it is generally accepted):
* This is where the doctrine most commonly applies and is most readily accepted.
* Example: A solicitor negligently fails to file a claim within the limitation period, causing their client to lose the opportunity to sue a third party. The client hasn't definitively lost the case (as it was never heard), but they've lost the chance to pursue it.
* Key case: Allied Maples Group Ltd v Simmons & Simmons [1995]. This case established that where the claimant's loss depends on the hypothetical actions of a third party, the claimant only needs to show that there was a "real or substantial chance" (not just a speculative one) that the third party would have acted in a way that would have benefited the claimant.
* Quantification: If a "real or substantial chance" is established, damages are then awarded as a percentage of the potential gain, corresponding to the lost chance. For example, if the lost chance of winning a lawsuit was assessed at 40% and the potential winnings were £100,000, the claimant might recover £40,000.
2. Personal Injury/Medical Negligence Lost Chances (where it is generally not accepted):
* This is the more contentious area. The UK courts have generally resisted applying the "loss of a chance" doctrine to claims for physical injury or medical outcomes.
* Example: A doctor negligently misdiagnoses a patient, reducing their chance of recovery from 40% to 10%. If the patient subsequently suffers the harm (e.g., their condition worsens or they die), the traditional "but for" test would ask: would the patient have recovered but for the doctor's negligence? If the chance of recovery was already less than 50% before the negligence, it's hard to prove causation on the balance of probabilities.
* Key case: Gregg v Scott [2005]. The House of Lords (now Supreme Court) held, by a majority of 3:2, that a reduction in the chance of a better medical outcome was not a compensable loss in itself. The majority reasoned that applying the "loss of a chance" doctrine in such cases would undermine the "all or nothing" approach to causation that is fundamental to tort law. If the patient had less than a 50% chance of recovery initially, the negligence didn't cause their ultimate suffering, it just reduced an already uncertain prospect.
* Rationale for rejection: The courts fear opening the floodgates to highly speculative claims and moving away from the "all or nothing" principle of causation for physical harm. They generally prefer to stick to the "but for" test for factual causation in personal injury cases.
Key Differences/Summary:
| Feature | Economic/Commercial Lost Chance | Personal Injury/Medical Lost Chance |
|---|---|---|
| Acceptance in UK? | Generally YES (e.g., professional negligence for lost deals/claims) | Generally NO (especially for physical harm/medical outcomes) |
| Test for Causation | "Real or substantial chance" (no need for 50%+ probability) | "But for" test (must prove 50%+ probability of harm being caused) |
| Damages | Proportionate to the lost chance (e.g., 40% of potential gain) | "All or nothing" (100% of damage if causation proved, 0% if not) |
| Rationale | Recognises commercial reality, allows for uncertainty in third-party actions | Avoids highly speculative claims, maintains "all or nothing" for physical harm |
In essence, "loss of a chance" in tort is a specific and limited exception to the usual rules of causation, primarily applied in economic and professional negligence contexts where the hypothetical actions of others or market forces create inherent uncertainties that the traditional "but for" test struggles to address fairly. For personal injury and medical negligence, the courts remain largely committed to the more stringent "but for" causation test.
44
A C who suffers from mesothelioma (asbestos) can do what in negligence
Recover damaged from all persons in breach jointly and severally
But parliament have an act which allows C to claim from a government fund
45
Multiple sufficient cause - factual causation
Ds joint and severally liable where there is a later non fault or natural event causing D to be liable for the proportion of harm
46
Lost chance - factual causation
If the lost chance 50% or less cannot claim
If the Q relates solely to clinical negligence a lost chance cannot form the basis of a claim
47
Legal causation - negligence
Remoteness test
A defendant is only liable for damage that is of a kind, type, or class that was reasonably foreseeable at the time of the breach of duty.
* "Kind, Type, or Class of Damage": This is the crucial element. The defendant does not need to foresee the exact way in which the damage occurred, nor the full extent of the damage. They only need to foresee that the type of damage that actually occurred was a reasonably foreseeable consequence of their negligence.
48
What are the 3 new interveening act to break the chain of causation in negligence
Cs own acts
3rd party acts
Natural Act
49
Remedies for personal injury claims are split into two categories what are they
Special damages
General damages
50
What are special damages
Compensation for the C for the financial loses they have suffered (pecuniary)
E.g expenses that are able to be calculated
51
What are general damages
Damages for pain/suffering/loss of amenity
&
Future money loses
52
What's the difference between the law reform misc provisions act and fatal accident act for remedies when a person dies
LRMPA - Ds estate can claim
FAA - separate claim for Cs dependants can claim
53
What is pure economic loss and is it recoverable
Loses that are not as a consequence of the PI or damage caused but the exception is consequential economic loss which arises as a direct consequence of the damage
54
Tort law recognises in limited situations liability for pure economic loss for negligent misstatements and negligent acts ?
1. Negligent Misstatements
This is the most significant and well-established exception, primarily stemming from the landmark case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
Key Principles from Hedley Byrne:
* "Special Relationship" akin to contract: The House of Lords held that a duty of care could arise where there was a "special relationship" between the parties, even in the absence of a contract. This relationship is characterised by:
* Possession of a special skill: The defendant possesses some skill or knowledge.
* Voluntary assumption of responsibility: The defendant voluntarily assumes responsibility for the advice or information they provide. This is a crucial element. It implies that the defendant knows (or ought to know) that the claimant is relying on their advice.
* Reasonable reliance: The claimant reasonably relies on that advice or information. The reliance must be foreseeable and reasonable in the circumstances.
* Purpose of the advice: The advice is given for a specific purpose (or a generally described purpose) known to the defendant.
* Pure Economic Loss: The significance of Hedley Byrne is that it allowed recovery for pure economic loss (e.g., lost profits from a failed transaction based on negligent advice) without any accompanying physical damage or injury.
Negligent Acts very rare
55
Is economic loss recoverable under the law of contract
Yes, economic loss is generally recoverable under contract law. This is a key distinction between contract law and tort law.
Here's why and how:
* Core Principle of Contract Damages: The fundamental aim of damages in contract law is to put the innocent party in the same financial position they would have been in had the contract been properly performed. This inherently includes compensation for financial losses.
* Types of Economic Loss in Contract:
* Direct Losses: These are losses that flow naturally from the breach of contract, according to the usual course of things. Examples include the cost of replacing defective goods, the difference in value between what was promised and what was received, or lost profits directly resulting from the breach.
* Consequential/Indirect Losses: These are losses that do not arise directly but are foreseeable at the time the contract was made as a probable result of the breach. This can include lost profits from subsequent contracts, loss of business opportunity, or other financial setbacks that were contemplated by the parties.
* The "Economic Loss Doctrine" (and its relevance): While the concept of "economic loss" is often discussed in the context of the "economic loss doctrine," this doctrine primarily applies to tort law, not contract law. The economic loss doctrine generally prevents a party from recovering purely economic damages in tort when the losses arise from a contractual relationship. The rationale is that parties in a contractual relationship should rely on their contract to define their rights and remedies for economic harm, rather than bringing a tort claim for losses that are purely financial and not connected to physical injury or property damage (other than to the defective product itself).
In summary:
* Contract Law: Designed to deal with economic losses arising from breaches of agreement. Parties bargain for specific performance and remedies, and economic losses are a standard form of compensation.
* Tort Law: Generally focuses on physical injury to persons or property. "Pure economic loss" (economic loss not flowing from physical damage) is generally not recoverable in tort, unless a specific exception applies (e.g., negligent misstatement where there's an assumption of responsibility).
Therefore, if you suffer financial harm due to a breach of contract, contract law is the primary avenue for seeking recovery of that economic loss.
56
When does the exception to pure economic loss arise
Where D committed a negligent act or made a negligent misstatement and the C suffers
Usually arises when D gives negligent advice and C relies upon that advice
57
To bring a claim for psychiatric harm was is needed
Must be medically diagnosed and be a primary or secondary victim
58
Who are primary victims
Involved in the accident (danger zone)
Must show physical injury as a result of Ds actions was foreseeable
PV just need to show physical injury was foreseeable not that psychiatric harm was foreseeable
59
Who are secondary victims
Are usually Normal bystanders
SV need to show that it was reasonable foreseeable for a person of reasonable fortitude to suffer some psychiatric harm
There was a close tie of love and affection
Must be close in time and space to aftermath
60
Are rescuers a primary or secondary victim
Neither
61
What are the 3 defences in civil claims
Consent
Contributory Negligence
Illegality
62
What are the elements to consent in negligence
C had full knowledge of nature and extent of risk and he voluntarily accepted the risk
Subjective - not enough to be aware of the risk c has to accept it
63
Can consent defence be used for passengers in a vehicle
No s149 of the RTA excludes it
64
Employees injured at work can they consent to the risk of injury
No employer should protect them accordingly
65
For the defence of illegality to arise what does the D need for it to succeed
A connection between the illegal activity and injury suffered
66
Contributory Negligence
Illegality
Consent
Which are partial and which are complete defences
Partial
Complete
Complete
67
A negligent misstatement is made when D gives defective advice to C and C relies upon this and sustains damage what is the case and criteria that needs to be satisfied and examples
Hedley v Byrne
Fiduciary relationship exists
Been a reliance
Reliance was reasonable
D voluntarily assumed the risk
Played a real and substantial part in inducing C into the act
Negligent advice
Bad advice on pensions
Failing to perform services in a will
68
What is the common law duty between a manufacturer and consumer and criteria
Donoghue v Stevenson
C must prove:-
D was the manufacturer
Dangerous item was a product
C was the consumer
Product reached the C in form left manufacturer
69
What defences are available under common law for manufacturers faced with a claim for product liability
Consent
Contributory negligence
Exclusion clause of liability
70
Defective products under CPA are what
Suppler is strictly liable for damage caused wholly or party by defective product
71
Can you exclude liability under the CPA
No section 7 of the Consumer Protection Act confirms it's not possible to exclude liability
72
When dealing with a defective product it is usual to bring a claim against retailer via contract law and the CRA however it is possible to bring a negligence claim against the manufacturer
Whether an action can be brought in tort tie or contact will depend on type of defect
73
Product liability can be brought in two ways
Common law DvS
DOC, BOD, causation, damage
Consumer Protection Act
74
If a defective product claim is brought under the common law rule or statutory rule what is not allowed
If only loss incurred by C is the defective product it's classed as economic loss and not recoverable
75
What does the consumer protection act provide protection for
Personal injury and damage from a defective product
Strict liability
76
Elements that need to be proven under the CPA 1987
Damage (PI, death, property over £275)
Defect
It's a product
There is a producer
77
Can liability for defective products be excluded under the CPA 1987
No it cannot be excluded
It can under the common law rule of DVS (snail)
78
What is the limitation period to bring a claim for a defective product
3 years from injury or damage
79
What are the defences under CPA 1987
Defect is due to compliance with legal requirements
D did not supply the product (stolen)
D did not supply in course of business
Scientific knowledge not around at that time and unforeseeable
Person who made parts not liable if the design was flawed
80
To satisfy a claim for defective products under common law v CPA What does C need to show for each
Common law - negligence criteria
CPA - strict liability
81
If the only damage is the defective product this is economic loss and cost not recoverable but if D is found liable for the defective product under common law or statutory law what is allowed
Common law - d needs to cover cost
CPA 1987 - d does not have to cover cost and can only recover if over £275 in value
82
What is the long stop date for a claim for a defective product
10 years from the product being in circulation
83
Vicarious liability can the C sue the employer or employee
Either they are jointly liable
84
What is the control test in vicarious liability
Does the employer have the right to control the employee eg under the supervision and direction of employer
85
What is the integral test for vicarious liability
Is the individual integral to the business or just an accessory
86
When is the economic test used for vicarious liability
Where the control and integral test doesn't offer a solution the court look at the economic test
87
What is the economic test for vicarious liability (3)
Need all three
The employee works for a wage
Employee agrees work under control
Contact consistent with a contact of employment
88
When the court looks at imposes VL they look at what test overall and the factors
Is it fair just and reasonable
Employer likely to have the means to compensate
89
What does an employer have which means it cant delegate its duties of care to a third party
Non delegable duty
90
Independent contractors and VL
Employer not liable for VL
But can be liable for harm suffered by the IC if they breached their duty of care to their employees
91
Can an employer recover damages from their employee for a VL claim against them
Yes
Common law - when it was due to employees breach
Statute - contribution towards the claim (Civil Liability (contribution) Act 1977
92
What are the common law principles in relation to employers liability
The duty to take reasonable care of employees health and safety in the course of their employment which cannot be delegated
Competent staff
Adequate plant and machinery
Safe system at work
Safe premises
93
Regarding employers liability what does the court impose/take into consideration
That employers take reasonable care NOT that they do everything possible to I.e absolute or strict duty
94
What is not covered by the OLA 1984
Liability for a trespassers damage to property
95
What does an occupier need to be under the OLA
Have an element of control over the premises and so there could be more than one occupier
96
Can an Occupier under the OLA have control over a premises even if they are not in physical possession
Yes
97
What does section 1(1) of the OLA 1957 state
The duty which an occupier of the premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done to them
98
What does s2(2) of the OLA 1957 state
DOC to take such care as in all the circumstances of the case is reasonable to see that the visitor will b reasonable safe in using the premises for the purposes for which he is invited or permitted to be there
99
When considering OLA what should be considered
Likelihood of harm
Nature of Danger
Type of Visitor
Purpose of Visit
Seriousness
Cost of prevention
Warning signs
100
What does the OLA 1957 state for children
An occupier must be prepared for children to be less careful than adults
101
What does the OLA 1957 state about skilled visitors
An O may expect that a skilled person will appreciate and guard against risks of that in his job
102
Occupiers under the OLA can be protected if a visitor has been ……
warned about the danger
103
If the danger of a premises under OLA is obvious does the O need to warn against it
No and can rely upon the openly apparent risk posed by the danger to alert the C of the potential danger
104
Factors that should be considered for warnings under the OLA
Is warning clear and adequate
Is it obvious or hidden dangers
Is the visitor a child does the warning need more
105
Will an Occupier be liable of an independent contractor
No as long as they have employed a competent person and taken reasonable steps to check he is competent and work has been done properly
106
What does the OLA 1957 cover
Personal injury
Death
Damage to property
107
What does the OLA 1984 cover
PI and death only
108
OLA 1984 a DOC does not arise automatically there are 3 conditions that need to be satisfied
O aware of the danger or believe it
exists
O knows or believes a trespasser is in vicinity of danger
Risk is one the O could have offered protection
All are reasonable test
109
It is more difficult to prove a defective product under the common law rules of DvS due to having to prove all the elements of negligence do best to do what...
Make a claim under statute CONSUMER PROTECTION ACT 1987
110
Defences to both OLA
Consent
Exclusion
Warnings
Contributory Negligence
111
What must a notice do to exclude liability under OLA
must be brought to attention of person visiting
WORDING MUST cover the loss suffered
112
Can occupiers exclude liability for death or PI due to negligence
No and would be a breach of
UCTA (B2B)
CRA (B2C)
113
Who can sue under the CPA
Anyone who suffers damage as a result of the defective product do they could include not just the user of the product
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What (4) defences be allowed under the CPA
Compliance with legal requirements
Supply not in course of business
Defect did not exist at the time
Defect Not known at the time
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What are the elements for a private nuisance
C has a proprietary interest in land
I.e exclusive possession rights
Ds interference is unreasonable and interference is unlawful
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What are the defences to a private nuisance
Prescription
Statutory authority
Act of God
Unforeseeable act of a stranger
Necessity
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What are the two elements for a public nuisance
Nuisance must have affected a class of people
C has suffered special damage
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What are the defences under Rylands v Fletcher
Consent
Contributory negligence
Statutory authority
Act of God
Enforceable act of a stranger
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Nuisance deals with the interference of ….
Land
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What are the two types of nuisance
Private & Public
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What is private nuisance
Unlawful interference with a persons use or enjoyment of land
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What are the 3 types of unlawful interference in private nuisance
Encroachment
Direct physical injury to land
Interference with enjoyment of land
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Can guests of a hotel claim private nuisance
No because they only occupy the room no right to exclusive possession
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What are the defences for public nuisance
Statutory authority
Act of God
Unforeseeable act of a stranger
Necessity
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What is public nuisance
An act or omission that materially affects the reasonable comfort and convenience of a group of people
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A D posted 538 offensive letters to individuals would that be classified as a public nuisance and why
No because the court found that ads conduct was aimed at main individuals rather than a group or community
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Elements for a public nuisance
C must belong to a class
AND
If an individual C must have suffered damage over and above in the damage cause by the group/class
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What types of damage can public nuisance be claimed for
Damage to property
Personal injury
Economic loss
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Does a Person need a proprietary interest in the land for public nuisance
No
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Prescription defence in nuisance what is it and which nuisance can claim
Private nuisance
Where D has been using land for 20 years in an unreasonable manner
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What does the defence of statutory nuisance mean
If the activity is authorised by legislation
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What is the Defence of an act of god in nuisance
Where an act of god is the reason and not the D
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If an unforeseeable act of a stranger causes nuisance is D liable
No
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What is the defence of necessity in nuisance
Where there is an imminent threat to life or limb
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Does the fact planning permission has been agreed stop a claim for nuisance
No just because PP is granted does not give D a defence
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Does moving to the nuisance allow a defence to nuisance
No
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Two main remedies for nuisance
Damages
Injunctions
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What is a prohibitory injunction
An Order that prevents D from doing the activity
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What is a Mandatory injunction
Compels a D to rectify the situation
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What is a Quia Timet injunction
An order to prevent the activity before it takes place
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For a court to grant an injunction what is necessary In nuisance
C acted promptly
Not encouraged nuisance
D must be able to comply with it
ONLY USED WHERE DAMAGES NOT DEEMED APPROPRIATE
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Is Rylands v fletcher a private or public nuisance
Private
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Rylands v fletcher
Rylands v Fletcher is a landmark case in English tort law (civil wrongs) that established a principle of strict liability for certain dangerous activities. Decided in 1868 by the House of Lords, it created a new area of law distinct from negligence or nuisance.
The Facts of the Case:
* John Rylands (the defendant) owned a mill and had a reservoir built on his land to supply water to it.
* The contractors building the reservoir discovered disused mine shafts and passages beneath the land that connected to Thomas Fletcher's (the claimant) neighbouring coal mine.
* Crucially, the contractors negligently failed to seal these shafts properly.
* When Rylands' reservoir was filled with water, the water broke through the old shafts and passages, flooding Fletcher's mine and causing significant damage.
* Fletcher sued Rylands for the damage.
The Rule in Rylands v Fletcher:
The House of Lords held Rylands liable, establishing the following rule, famously articulated by Justice Blackburn in the lower court (and affirmed by the House of Lords):
"The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."
Key Elements of the Rule:
To establish liability under Rylands v Fletcher, the following elements must be present:
* Bringing onto land and accumulation: The defendant must have brought something onto their land and collected or kept it there. This refers to things that are not naturally present on the land (e.g., a large quantity of water in a reservoir, rather than natural rainwater).
* Likely to do mischief if it escapes: The thing brought onto the land must be something that, if it escapes, is likely to cause harm. It doesn't have to be inherently dangerous, but its escape must pose a foreseeable risk of mischief (e.g., water in large quantities).
* Non-natural use of land: The use of the land for the purpose of accumulating the thing must be "non-natural." This is a key and often debated element. It refers to an extraordinary or unusual use of land, bringing with it an increased danger to others, rather than an ordinary use of land. Examples of what has been considered "natural" include domestic water supply and normal fires.
* Escape: The dangerous thing must have escaped from the defendant's land to a place outside of their occupation or control.
* Damage: The escape must have caused damage to the claimant's land or property.
Significance:
* Strict Liability: The most important aspect of Rylands v Fletcher is that it established a principle of strict liability. This means that a defendant can be held liable even if they were not negligent and took reasonable care to prevent the escape. The focus is on the dangerous activity and the resulting harm, not on the defendant's fault.
* Extension of Nuisance: While it shares similarities with nuisance, it's distinct. Unlike private nuisance, it doesn't require a continuous interference, and it focuses on the escape of a thing rather than an interference with enjoyment of land generally.
* Limitations and Defences: Over time, the scope of the rule has been limited by subsequent cases. Common defences include:
* Act of God: An unforeseeable natural event that caused the escape.
* Act of a stranger: The escape was caused by the unforeseeable and deliberate act of a third party over whom the defendant had no control.
* Consent of the claimant: If the claimant consented to the accumulation of the dangerous thing.
* Statutory authority: If the accumulation was authorized by a statute.
In modern law, the rule in Rylands v Fletcher is often seen as a specific application of nuisance, particularly regarding isolated escapes of dangerous substances.
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What are the elements to Rylands v Fletcher
D must have brought something to the land That is non natural likely to do mischief if escaped and caused damage
Cannot claim PI
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Can a C being a claim for PI with Rylands v Fletcher
No
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Remedies for R v F
Damages
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What at the 4 factors the court will consider in a negligence claim
Risk of Damage
Seriousness of the damage
Cost of prevention
Social utility of Ds activity
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What duty does the OLA 1957 impose
Under the Occupiers’ Liability Act 1957, occupiers owe a duty to all visitors, and the duty is to keep the visitor reasonably safe. The duty does not relate to keeping the premises safe. This is an important distinction
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When can a claim for public nuisance be brought
A claim in public nuisance can only be brought by a person who has suffered a specialised damage, or one over and above that suffered by the public in general.
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What is the test under the OLA 84
O is aware/reasonable ground to believe a danger exists
O aware or reasonable grounds to believe someone may come into vicinity of danger
Risk is one O could reasonably be expected to offer protection
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For a Nuisance to be actionable it must be what
Substantial and Unreasonable (i.e. significantly interfere with T's use and enjoyment of land)
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What will the court consider for Nuisance Claims
Duration
Frequency
Intensity
The nuisance must be substantial
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Limitation Period PI Claims
3 years to submit a claim. This 3 year period starts from either:
The date of the accident or injury, or
The date when the claimant first became aware (or should have reasonably become aware) that they suffered an injury attributable to the defendant's actions, whichever is later.
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Material Increase Test
Joint & Several does apply
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Material Contribution Test
Liable for proportionate damage caused by how much they contributed towards the disease
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Where there is a cumulative disease caused by the negligence of multiple Ds over time
Material Contribution Test applies to see what Ds are liable. IF all materially contributed their costs will be proportionally apportioned to how much they contributed
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Is mining activity classed as a natural use of land (RvF)
Yes as gas has not been brought onto the land
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Will a group of footballers be classed as a class of people for the purposes of a public nuisance
yes
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Private Nuisance - Interference will always be unreasonable if it .....
causes damage to property
This is different if the property had not suffered damage but only personal discomfort then the court would take into account the locality and character
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What are the defences for RvF
Consent
Contributory Negligence
Statutory Authority
Act of God
Unforeseeable Act
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Is prescription a defence to private nuisance
yes as long as the activity carried on for more than 20 years
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is prescription a defence to public nuisance
No
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What are the two requirements needed to succeed in a claim for public nuisance
Affected a Class of People
Claimant Suffered Special Damage
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Defences to a claim in private nuisance
Prescription
Statutory Authority
Act of God
Unforeseeable act of a stranger
Necessity
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Elements required to prove a claim for private nuisance
C has a proprietary interest
D's interference is unreasonable
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Is blood classed as a product under the product liability act
yes
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what does the C have to prove under the product liability act
just that the product was defective
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what can a C usually claim under the product liability act
Damage for PI
Cost of damaged property must be over £275 if over full amount can claim the full amount not just that over £275
the cost of the product is NOT recoverable as it is pure economic loss
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What is the common law duty (DvS) between Manufacturer and Consumer (4)
C must prove that D was the manufacturer
That the dangerous item was the product
C was the consumer
Product left M in form reached C
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What are the defences available to a manufacturer faced with a claim under common law
Consent
Contributory Negligence
Excluded Liability
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Is it possible to exclude liability under the CPA 1987
No it is not possible to exclude liability under this act
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What is the percentage reduction for not wearing a seatbelt in Negligence
10%
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what is the leading case that governs the rule on damages in contract law and what is the rule
The legal principles of causation and remoteness of loss in contract law are governed by the rules established in Hadley v Baxendale (1854). Damages for breach of contract are recoverable if:
1. The loss arises naturally from the breach (in the usual course of things), or
2. The loss was within the reasonable contemplation of both parties at the time of contracting as a probable result of the breach
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what is private nuisance
Law btween neighbours
Unlawful Interference with enjoyment of Land
Unreasonable & Substantial
Damage to the enjoyment of C
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What does substantial and unreasonable mean in private nuisance
Must materially interfere with the “ordinary comfort physically of human existence”.
Except interference with what is described as a type of elegant lifestyle.
If the interference causes physical damage, it is more likely to meet the threshold of being substantial and unreasonable
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Can a D raise the defence if they supply a gift that was charitable in nature avoid proceedings under the CPA 1987
Yes if supplied the product for charitable nature it was not in the course of business with a view to profit
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Factors court consider when assessing private nuisance
* the locality, time or duration of the nuisance
* any particular sensitivities of the claimant
* malice, and
* the type of damage caused
* social utility
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Who can bring a private nuisance claim and who can the D be
C - only a person who has a proprietary interest
D - Anyone
owner of the land, the occupier of the land, or the creator of the nuisance
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Defences to Private Nuisance
Contributory negligence Volenti
Statutory Authority
Prescription
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When would the defence of prescription begin in a private nuisance
20 years start from when the C is aware of the nuisance not when it began!
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Remedies for private nuisance
Damages
Injunctions
Self Help
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Can you claim for Personal Injury for private nuisance cases
Generally not possible to claim for PI because the aim is to compensate for the injury to the land
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Public Nuisance
Public nuisance is both a tort and a crime and generally dealt with under the criminal law
Materially affects the reasonable comfort and convenience of life of a class
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When can an individual bring a private claim for a public nuisance
If they can show special damage compared to the rest of the community
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Defences to public nuisance
Contributory negligence Volenti non fit injuria Statutory authority.
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What remedies are available for a Public Nuisance
Damage and Injunctions
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4 elements of the rule in RvF
D must have bought something onto land likely to do mischief if it escapes.
The dangerous thing must escape.
The use of the land must have been non-natural.
Must have been damage as a result of the escape (foreseeable)
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To be able to bring a claim under RvF what must the party be
Owns or has exclusive possession of the land
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Defences to RvF
Contributory negligence
Volenti non fit injuria
Statutory authority
Acts of God and the acts of a stranger.
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What is the remedy under R v F
DAMAGES ONLY
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If the escape of the non natural thing from land is due to the fault of a 3rd party will D be liable
No unless it was reasonably foreseeable
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Difference in Public & Private Nuisance
Private nuisance interference that affects the use and enjoyment of land.
Public nuisance is antisocial activity, but those who are eligible to claim public nuisance have to show that they have experienced special damage.
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3 elements of private nuisance
* an interference with the claimant’s enjoyment of their land
* the unreasonableness of the interference, and
* the interference caused damage to the claimant’s enjoyment
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what have the courts rule is not a private nuisance
being overlooked or hindering a television reception
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Substantial and unreasonable in private nuisance
the nuisance must materially interfere with the ordinary comfort physically of human existence.
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Will noise from a factory be a private nuisance if in a residential area
likely to be yes
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Sensitivity in private nuisance
unlikely to be allowed as a PN unless it can be shown that the other businesses would be harmed
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what will be some ineffective defences in Private nuisance
coming to the nuisance, public benefit and the use of skill and care
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Important rule about Damages and private nuisance
it is not possible to claim damages for personal injury in private nuisance, because the aim is to compensate for injury to land.
There is a subtle difference between personal injury and personal discomfort and it is possible to recover for lost enjoyment.
200
201
What case developed the neighbour principle
DvS
202
What is the neighbour principle
You must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour
203
204
What does the CPA 1987 (product liability) aim to do?
Imposes strict liability for death, PI and some property damage caused by a defect in a product
205
Who can sue under CPA 1987?
Anyone who suffers damages because of the defective product
206
Who can be sued?
Wide range inc producers, branded, importers, suppliers
207
What is the limitation period for product liability?
3 years from damage or knowledge of damage
Long stop 10 years where barred from the date that the product was in circulation (I.e. supplied to another)
208
Who does the burden or proving that the product was defective?
It lies with the C to prove BOP product was defective
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Defences under the CPA include (7)
• a defect being attributable to compliance with statutory requirements
• the defendants did not supply the product, for example, stolen goods
• the supply of the product was not in the course of a business
• the defect did not exist at the relevant time
• the development risk defence (this is not available if a generic defect either was known, or
should have been known, about at that time), and
• the defect was with a component within another product and the defect was integral to the
design of the product of which the component was a part.
• It is also possible to argue the defence of contributory negligence.
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Courts are reluctant to find psychiatric harm to a C for what type of people
Police and hospital
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The exception to PEL of negligent mis statement. Can the D use a disclaimer or exclusion clause
Yes and it's it subject to fair/reasonableness test
212
Will PEL apply if a C suffers economically from damage to a 3rd party
No
213
What do I need to remember for OLA 1957 as to what will they Be liable for
The premises not the activity
214
Does and occupier under OLA 1957 need to be the owner of the land
No someone who is in control and can be more than one
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Can an O expect parents to supervise their children on the premises
Yes therefore O only needs to make the premises reasonably safe for children whilst supervised
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Can an O discharge their duty by placing a warning
Yes but the warning must be specific and adequate "danger" unlikely to be enough
217
Is there a general duty to warn a V about obvious risks
No
218
If an O puts up adequate warnings and V ignores is O liable
No will be a defence
219
Can an O exclude liability with a notice
Yes as long as it's clear and covers the claim
220
PRIVATE OCCUPIERS e.g home owners are not subject to what under OLA
Fair/reasonable test
221
What is excluded under the OLA 1984
Damage to property
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What is the standard of care owed under OLA 1957 v 1984
1957 - reasonable care so that V is reasonably safe from dangers on the premises
1984 - reasonable in all the circumstances
1984 is not as high a standard
223
Defective products is it best to pursue in contract or negligence
Contract because no need to jump through DOC/BOD/causation/remoteness
(But can only be if your have POC)
224
If you want to sue the manufacturer for product liability can u sue under contract or negligence
Must be negligence or CPA because contract would not have POC
225
Why is suing under CPA V NEGLIGENCE easier
Because strictly liable and just need to show product is defective
226
A claim in negligence for product liability if only the product is broken can you claim
No it only covers PI/damage to property
227
Can a manufacturer exclude product liability for a defective product
NO
228
Under the CPA what can be claimed
Personal injury/death/damage over £275
229
Can liability under CPA be excluded
NO
230
For most civil cases the BOP lies with the C what are the exceptions
Road Traffic Accidents
Undue influence
Duress
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Exception to the “But For” Rule: Multiple Potential Causes
Industrial disease cases:
Courts sometimes deviate from the “but for” test when there are multiple causes (e.g., several employers exposed a worker to harmful substances).
If it’s impossible to prove which exposure caused the harm, the court may use a different test.
Material contribution test:
If the defendant’s actions made a material (not negligible) contribution to the harm, and it’s more likely than not, then causation can be established.
Example:
If a worker is exposed to dust by several employers and develops a disease, each employer may be liable for their contribution.
232
M
233
Apportionment and Multiple Defendants
Apportionment:
If more than one defendant contributed to the risk, each is liable for their share (e.g., based on how long the claimant was exposed under each employer).
Material increase in risk:
If multiple defendants increased the risk of harm (even if you can’t prove which one caused it), the court may hold them liable if their actions materially increased the risk
Mesothelioma (Fairchild exception):
For mesothelioma caused by asbestos, if multiple employers exposed the claimant and it’s impossible to prove which exposure caused the disease, all employers can be held jointly and severally liable if they materially increased the risk.
234
Summary of But For Tests
But For” Test - Simple cases, single cause - Harm would not have happened without D
Material Contribution Test - Multiple causes, cumulative exposure - D’s actions made a material contribution -
Material Increase in Risk - Multiple defendants, unclear cause, risk raised - D’s actions materially increased the risk
Fairchild Exception - Mesothelioma cases, multiple exposures - D’s actions increased risk, all liable
