1
Q
Test to show negligent liability
A
- Is the harm actionable in negligence?
- Does the law impose a duty to protect C from this type of harm? (scope of duty)
- Did D breach that duty?
- Factual causation
- Harm within the scope of the duty?
- Recoverable? (remote/ other causes/ avoidable)
2
Q
Neighbour principle
A
- Reasonale care
- Avoid acts/ omissions
- Cause reasonably forseeable harm
- Anyone closely/ directly effected
Turn on the facts of the case
3
Q
Tests to decide if a duty of care is owed
A
- Incrementally / by analogy
- Caparo 3 stage teest
4
Q
What is the Incremental / by analogy test?
A
- D of C precedent? (sep card)
- A similar case where a duty was imposed?
The court will use this case and not apply Caparo test
No previous/ similar duty = 3 stage test
5
Q
Categories of established duties?
A
- Road Users
- Manufacturers to Consumers
- Employers to Employees
- Doctors to Patients
- Occupiers to Visitors
- Schools/Teachers to Pupils
- Employers/Organizers to Participants in Activities
- Local Authorities e.g child protection
- Solicitors to Clients
- Public Authorities in Road Maintenance
6
Q
Caparo 3 stage test
A
- Reasonably foreseeable failure to take care would cause damage
- Relationship of proximity
- Fair, just and reasonable to impose duty
7
Q
When is the Caparo 3 stage test used?
A
When the court needs to decide if a new category of duty exists
8
Q
Stage 1: How is reasonable foreseeability determined?
A
C must be in a class of individuals put at foreseeable risk by Ds action
e.g:
Children playing at risk of lung damage = RF
Pedestrian witnessed a crash went into labour = not RF
9
Q
Stage 2: Proximity
A
Relationship / connection between C and D
e.g:
Boxing Board and boxer = sufficient proximity
Surveyor and tenant/ public = insufficent proximity
10
Q
Stage 3: Fair, just and reasonable
A
Policy considerations - prevent ‘flood’ of claims
e.g:
Impose costs of raising a child on the Dr after negligent operation = unfair
Rugby referee and players = fair
11
Q
Omissions and negligence
A
The law will not impose a positive duty to act if there is no tortious/ contractual relationship
exception - established relationships
12
Q
Will a duty of care come from a statutory power?
A
No
e.g local council not removing obstruction even though they have the power to
unfair burden - policy decision
13
Q
When is a duty of care imposed for an omission? (not stat/ con duty)
A
Established relationships:
- D exercises control over C (teacher/ lorry/ council)
- Assumption of responsibility for C safety/ well-being (drunk pilot)
- Creating dangerous situation (allowing a fire to burn out and spread)
14
Q
General rule for duty of care and third parties
A
No general duty of care to prevent others causing harm e.g intruders on premises - reasonably forseeable?
Exception - relationship between the parties
15
Q
When will D be liable for duty of care for third party actions in negligence? (exceptions to rule)
A
- Special relationship between C and D (decorater & homeowner)
- Special relationship between D and third party e.g control/ supervision (supervisiors of young offenders)
- Create danger and RF a third party would interfere (police officer injured helping horse)
- Fail to take steps to stop danger created by third party (local authority duty to owners who’s proeprty damaged)
Duty of care
16
Q
General rule on special relationship between D and third party?
A
More proximate relationship = more likely to impose duty of care
e.g supervisors of young offenders who escaped and caused damage … owed duty to owners of damaged property
17
Q
When is a person under a duty to warn someone about risk of loss, injury or damage by a third party? (criminal conduct)
A
- Duty to supervise third party and fails
- Creates risk of injury (e.g gives someone a weapon)
- Assumes responsibility for claimant’s safety and carelessly fails to protect
- Employers vicariously liabile for employee’s crime
18
Q
Burden of proof for breach of duty
A
Claimant - on the balance of probabilities
(more than 50% likely)
19
Q
What is breach of duty?
A
Fallen below standard of care expected/ required by law
20
Q
Different standards of care
A
General
Professional
Special
21
Q
Test for general standard care
A
What the reasonable man would have done (in all the circumstances)
22
Q
Who is the reasonable man?
A
The average person:
- Act in accordance with previous circumstances (pipe bursting in unusually cold weather = not liable)
- Neither too nervous nor too robust (employee carrying hot tea = not liable)
- Ordinary middle class educuated man (race track fire no RF = not liable for death of spectators )
takes into consideratison forseeability not remoteness
23
Q
Test for professional standard of care
A
Judged against a reasonable person with the same skill/ training
BOLAM TEST - act in a way accepted by reasonable body of experts?
If yes…
BOLITHO TEST - Is there logical basis for acting in this way?
Apply to medical treatment!! not disclosure of risk
24
Q
Test for discloure of pre-treatment information
A
Change to Bolam test:
Duty of care to warn patients about material risk
e.g birth defects of a child - patient should make the decision
material risk = what a reasonable person in the patient’s position would think is significant - dr should disclose risks they know or ought to know a patient would think is significant
25
General rule on scope of harm
harm must fall within the duty - *what were they preventing?*
e.g if a dr advising on a specific conditon liability will **only extend to that condition**
outside of scope = no liability even if negligence is proven!!
26
General rule on junior professionals
Lack of experience = no defence
judged against the same standard of any professional
27
Special standards of care
**Children** - judged against children of a similar age (girls fencing with rulers = not liable)
**Sporting activities** - duty where there is a reckless disregard for safety (horse rider and photographer = not liable only error of judgment)
**Unskilled** - reasonably competent standard (learner driver injured instructer = liable)
**Illness** - what is reasonable competent? knew of their condition and caused further harm? (driver had a stroke and carried on = liable) (diabetic but unaware = not liable)
**Emergency**- care and skill reasonable in circumstances (benefit of saving life outweighs need to take precautions) (police officer owes same standard to a suspect and the public)
**State of knowledge** - at the time of the incident (contaminated injections unknown at the time)
28
Other relevant factors to decide standard of care owed
**Cost of precautions** - low cost - likley to fall below standard of care (factory flooded unreasonable to send home = not liable for injury)
**Social value** - in society's interest - lower standard (game in the dark no social value = liable for injury)
**Likelihood of harm** - more likely injury will happen - likely to be liable - could have been avoided (cricket ball hit pedestrian = not liable)
**Seriousnss of injury** - more serious - likley to be liable (employee blind in one eye should have been given goggles)
29
What help the court determine the social value of an activity?
Compensation Act 2006 - if D took steps would this have prevented people taking part in a socially desirable activity? (people should not be deterred if taking part in risky activites for the greater good) = stop fear of litigation
* volunteering (e.g. charity events, school trips)
* sports and recreational activities
* emergency assistance (e.g., first aid)
* Community or public service projects
SARAH 2015 - protection for people who help in emergencies
**Responsible or heroic approach?**
30
When is res ispa loquitor used?
Road traffic accidents
Claimant - to prove actual occurence of the event is evidence of negligence
31
BOF in Res Ispa Loquitor
Defendant - argue the incident could have occured without negligence
32
Criteria to use Res Ispa Loquitor?
1. D must be in **control** of what / who caused damage
2. Damage would **not normally occur** without negligence (plane crash)
3. Cause of incident is **unknown** (car crash and passengers injured)
33
When can a claimant not use RIL?
The cause of the incident is **known the court**
e.g there are witnesses = cannot apply
34
Effect of civil evidence act 1968
Clamant can **use criminal conviction as evidence** if offences involves negligence
Proof D committed the offence
**BOF on D to prove not negligent** / not caused accident
Driving offences (Road Traffic Act) / Gross neglignce manslaughter
35
Types of causation
**Factual** - but for test (any exceptions?)
**Legal** - is the harm suffered too remote? Break in the chain? Policy justifications?
| Both must be satisfied
36
But for test
Would the harm have occured but for D's negligence?
or
would it have occured in any event?
37
Exceptions to factual causation
1. Multiple potential causes
2. Multiple sufficient causes
3. Lost chance
38
What to consider when there are competing causes of harm?
Enough evidence to prove the harm has been caused by D's negligence?
**Materially contributed/ substantially** caused harm? = liability can arise even if not sole cause
*make harm worse/ accelerate?*
39
How does the court deal with competing causes of harm?
% chance of each cause - can it conclusively be proved the negligence caused the harm? (more than 50%)
e.g Dr giving too much oxygen to baby - 1 of 5 causes = 20% chance
40
When will D materially contribute to harm
Result was inevitable but made worse by negligence?
e.g dust in the factory was inevitable but made worse by the employer - **more likley to cause disease** = causation
| Guilty & innocent causes!
41
When will D materially increase risk of harm?
Employers negligence contributes to a greater risk of harm
e.g exposed to dust, no showers at work, the longer covered in the dust = increased risk = employer liable
usually apply if cannot pin point harm
42
Who will be liable if there are multiple parties/ employers who contributed to harm? (mesothelioma)
Fairchild exception = ***joint and severally liable***
1 party liable for the whole loss OR each liable for **their share** (common practice to split equally)
(Fairchild/ Compensation Act 2006)
| **ONLY APPLIES TO MESOTHELIOMA CASES**
43
What will happen if D suffered harm form negligence but also **contributed** to the harm?
Reduction in damages - **unless**
but not in mesothelomia case - can pursue 1 defedant for entire loss (J&S liable)
44
Effect of Mesothelioma Act 2014
Claimants who contracted mesothelioma can claim compensation from government fund (asbestos claims)
45
When does the fairchild exception apply?
Exposure to **asbestos**
* Mesothelioma - claim damages from multiple or 1 defendant
* Lung cancer - claim damages in proportion to responsibility
| Claim against any or all employers
46
What cases does the Compensation Act 2006 apply to? What is the effect?
**Mesothelioma** cases only
**joint & several liability** = claim damages from all repsonsible persons or the whole amount from 1
47
How can a party claim compensation if they develop lung cancer?
Claim against any employer but only for **their proportion** of responsibility for the inc risk (Barker)
48
What happens if more than one negligent D could have caused the harm?
Both will be liable
49
What happens if there is a **consecutive** cause that also passes the but for test?
Liability for original accident will continue - will **not reduce liability / damages**
e.g leg injured in car accident - could not work - later shot and lost leg = **still liable** for damages even though leg was removed!!
| Robbery did not replace original injury only added to it
50
When will liability for compensation stop if there are **consecutive causes** that both satisfy but for test?
The point there is an unrelated / non-tortious cause that *would have occured anyways* = not satisfy but for test
e.g back injury but later diagnosed with back disease
51
What happens if **both defendants cause harm** but it is impossible to prove who is liable?
Courts apply material increase
**both equally liable**
e.g hit by 2 negligent drivers at the same time
52
Law on *'lost chance'*
But for test satisfied? No...
Look at the probability of chance - **less than 50%** - not liable for lost chance
e.g improper diagnosis but 75% chance still would have developed condition = not liable
53
When can lost chance **not** form the basis of a claim?
Queston is **only** about clinical negligence
54
Test for remoteness (legal causation)
Was the **type or kind** of damage reasonably forseeable at the time of breach - does not matter the extent!!
e.g oil spillage from ship causing fire = fire not RF
55
Eggshell skull theory
Take victim as you find them - cannot blame pre-existing health conditons
**still liable** for **full extent** of harm
56
What happens if a claimant has lack of means?
D will be liable for cost
e.g cannot afford replacement vehicle = liable to pay
57
Intervening acts
**Claimant's act** - e.g not asking for help to climb steep stairs
**Third party's act** - e.g police officer negligent giving orders and policeman injured in car accident - driver not liable
**Separate/ natural act** - weather = only liable for original damage
| **unreasonable = break the chain!!**
58
When will an intervening act not break the chain?
it is a reasonably forseeable consequence
59
Aim of damages in negligence
Put C back in the position has negligence not occurred
60
Time limit to bring a claim for personal injury
3 years from the date of the accident OR date of knowledge
61
Special damages & examples
All pecuniary loss (past only)
e.g loss of earnings, medical care/ aids, transport, accomodation, clothing/ property, DIY, gardening
62
General damages & examples
**Non- pecuniary** - pain, suffering, loss of amenity (enjoyment of life)
**Future pecuniary loss** - all future financial loss e.g future loss of earnings, future medical care/ aids, future travel/ transport/ accomodation, future loss of pension
63
Remedies for PI / death claims
Special damages - past pecuniary loss General damages - non-pecuniary & future pecuniary loss
64
What happens if C dies as a result of a negligent act before the trial?
Estate can bring a claim:
***Law Reform (Miscellaneous Provisions) Act 1934*** - etstate can continue a claim
***Fatal Accidents Act 1976*** - seperate claim by the deceased's dependants
65
What can the estate claim if there is an **ongoing** claim for negligence but C dies?
Estate can claim what C was entitled to up until the instant he died
C must have a cause of action againt D
Contributory neglignce = damages reduced
66
What happens if a person dies due to a negligence of D?
Dependants of the deceased can bring a separate claim **only if C would have been able to sue before he died**
67
Conditions for a dependant to bring a claim after death?
Must be a dependant & proved they would have received financial benefit from the deceased if they had not died
68
Who is a dependant under the Fatal Accidents Act 1976?
* Spouse/ CP (inc former)
* Living in the same house immediately before death for at least 2 years (whole period = same as husband/ wife)
* Treated as a parent
* Child/ grandchild
* Step children (treated like a child)
* Neices/ nephews
* Cousins
69
Possible damages awarded to a dependant of the deceased
* Bereavement award
* Dependency claim for suffering financial losses
* Funeral expense
* Loss of consortium (personal affection
70
Damages awarded to Estate if continuing claim of the deceased
Up to date of death:
* Pain, suffering, loss of amenity
* Loss of earnings
* Cost of care
* Damage to personal property
* Funeral expense
71
General rule on economic loss in tort
Only recoverable if it arises from physical damage to property/ harm to claimant
**A direct consequence**
72
What is pure economic loss and when is it recoverable?
Financial loss resulting from harm caused by negligence (not usually recoverable)
e.g **anticipated loss** of profit on goods / loss of trade/ profits/ revenue
Spartan Steel:
* loss on damaged metal = recoverable
* anticipated profit on future melts = NOT recoverable
**only recoverable if a consquence of damage to property/ harm to claimant**
| also in hedley v burn - neg misstatement (assumption of responsibility)
73
What is consequential economic loss and when is it recoverable?
Financial loss sustained due to another harm caused by negligence
recoverable = result of physical damage/ harm to C
e.g property damage/ personal injury/ loss of earnings
74
What economic loss is recoverable for defectivce property/ products?
Only recover cost of repair **not** (consequential) loss incurred on the reduction of sale price - ***common law only***
e..g council negligently approving property plans = duty to inspect/ approve but not for economic loss
75
When can you recover loss for negligent misstatements?
1. Special relationship of T & C
2. Party preparing the statement voluntarily assumed the risk (expressly/ impliedly)
3. Reliance on the information/ statement
4. Reliance on the statement was reasonable
e.g bank producing negligent credit reference could not exclude liability = liable for pure economic loss
76
Example of special relationship imposing duty for pure economic loss
Employee negligently advising somone buying petrol station the out put was higher than it was = reduced sales = liable for pure economic loss
Reasonable they would rely on knowledge/ expertise
77
Examples of voluntary assumption of risk for pure economic loss
Normally cannot reover unless there is a special relationship/ assumption of responsibility
Bank negligently not freezing payments following court order = **no voluntary assumption** just following legal duty = not liable for economic loss
or
knows the client will rely on their advice (Hedley) = **is a voluntary assumption** (professional advisory relationship) - SATISFIES PROXIMITY IN CAPARO TEST TO EST DUTY OF CARE
78
Example of reliance for pure economic loss
House buyer will rely on survey obtained by mortgage company to show value even if no contract
79
Example of reliance in reaosnable circumstances for pure economic loss
Reliance on auditors accounts was unreasonable = requirement for CH and not for use by potential investors = not liable for economic loss
80
What is psychiatric harm? When can you bring a claim?
Medically **diagonosed/ recognised** psychiatric illness
Caused by sudden shock/ horrifying event
*More than simple grief, sorrow, fright, distress or sadness*
81
Who are primary victims? What must they prove? (psychiatric harm)
Involved in the accident / believes they are in danger
Must show **physical injury** was reasonably forseeable = duty of care owed
e.g in a car accident - suffered no physical harm but developed ME = physical harm RF = primary victim
| Eggshell skull rule applies!!
82
Who are secondary victims? What must they prove? (psychiatric harm)
Bystanders (no physical injury)
Must show reasonably forseeable a person of **reasonable fortitude** would suffer psychiatric harm from witnessing
Alcock test - controls:
1. Close tie of love & affection
2. Closeness to C (time/ space to aftermath)
3. Witnessed with own senses
83
Alock test
Control mechanisms to claim psychiatric injury as a secondary victim:
**Close tie** of love & affection - parents/ children/ spouses but other cases must be proved (2 brothers = failed)
Closeness of **time & space** to aftermath (relatives indentifying bodies 9 hours post incident = failed)
**Means witnessed** (families watching on TV not using own sense = failed)
84
When is a duty of care not owed to a **secondary victim**? (psychiatric harm)
Clinical negligence - only owe duty to patient
Unless neglignt act and traumatic event are **part of the same incident**
| Only owe duty of care to direct patients
85
Law on rescuers and psychiatric harm
Only primary victims if they are exposed to physical danger
86
When can C claim psychiatric injury for desctruction of property?
Psychiatric illness if witness destruction of property
e.g watching your house on fire due to negligent installation of heating
87
What psychiatric harm can you not claim for?
Anxiety of future disease
(could not have reasonably forseen this at the time fo breach)
88
When can you claim psychiatric harm for involuntary involvement (causing/ witnessing harm to another person)
**Reasonable belief** that C was involuntarily involved in causing another's death/ injury
e.g crane installer - cannot be just feelings of guilt (look at actions after incident - fear of own safety)
89
General defences available when negligence is **established**
* Consent
* Contributory negligence
* Illegality
| Defences apply to ALL torts
90
Test to prove consent (volenti non fit injuria)
| "There can be no injury to one who consents"
1. C had full knowledge of the nature and extent of the risk
2. C voluntarily accepted the risk
**Successful = complete defence**
91
Can you consent to nature/ extent of harm if intoxicated? (knowledge)
Yes - if you are not so drunk you are **still aware of the extent/ nature of risk** - *inc fail to stop someone else*
e.g 2 friends drunk and decide to fly the plane - pilot dies (claim against pilot's estate failed bc used defence of consent to say knew pilot was drink and willingly got into the plane)
92
When will there be no voluntary acceptance of risk?
D gave objections
93
Who cannot voluntarily accept the risk?
Child / detained under MCA 2005
***cannot freely accept the risk***
because of an impairment cannot:
* Understand the relevant information
* Retain that information long enough to make the decision
* Use or weigh that information to come to a decision
* Communicate their decision (by any means)
94
Can defendant's use the defence of consent against claimant passengers?
e.g passenger know driver was intoxicated
Road Traffic Act - excludes consent as a defence to claim in negligence
may **reduce damages** to show contributory negligence
95
Can employer defendant's use the defence of consent against claimant employees?
e.g employee knows there is a significant risk (stone fell from crane)
Consent will **not apply** as a defence - employers should be aware of risk and try protect employees (often economic pressure and not freely accept risk)
basically employees will not consent to neg ❌
96
Can defendant's use the defence of consent against claimant's injured **doing** sporting activities?
e.g broken leg after a foul in football
Conset will **not apply** as a defence if it is foul play that would cause serious injury
97
Can defendant's use the defence of consent against claimant's injured **watching** sporting activities?
e.g photographer hit by horse
Consent will apply to risk of damage caused by error in judgment/ lapse of skill - **not apply to reckless disregard (negligent act)**
98
Contributory negligence
Partial defence -
The extent the claimant contributed to their own **injuries**
Used in other torts!! Most common defence!!
99
Test for contributory negligence?
1. C failed to exercises reasonable care/ skill for **own safety**?
2. Failure contributed to C's damage
3. What extent damages should be reduced
100
What will the court consider for contributory negligence?
* What would a **reasonable person** do to avoid being hurt: acting aganst employers instructions = damages reduced
* How did **carelessness effect injury**: cyclist did not slow down but swerved last minute = damages reduced
* Extent C's behaviour caused injuries/ **culpability of C**: determine **reduction in damages** - *next cue card!!*
| **Caused& contributed to injuries **
101
How do the court determine reduction in damages for contributory negligence?
Mostly used in road accidents: (not wearing seatbelt)
but other PI cases too
***Froom*** guidelines
a) All / most of injuries would have been **prevented** - 25% reduction
b) Injuries would have been **less severe** - 15% reduction
c) No difference - 0% reduction
102
Children and contributory negligence
Younger the child = less likely to apply
Generally under 10 years old = will not apply
An age where can be expected to take precaution for own safety / blameworthy = will apply
103
Court assessment for employees and contributory negligence
Assess conduct/ working conditions:
Reckless disregard for rules = negligence
e.g fall asleep driving after long work hours = 33% liable
104
Rescuers and contributory negligence
Judged on the standard of a reasonable rescuer in an emergency
Reluctant to punish rescuers
Wholly unreasonable disregard for own safety = will apply
105
Illegality (ex turpi causa non oritur actio)
| From a dishonourable cause an action does not arise
Complete defence
Successful = no damages to C
Against public policy to allow someone to benefit from criminal activity e.g burgular injured = cannot get damages
| Applies to all torts!!
106
Test for illegality
Connection with illegal activity and injury suffered by C
e.g driving on the way home from a burgulary and crash = no connection
107
Examples of illgeal activities
Passenger who knew D was drunk and encouragd reckless driving = no duty of care = no defence
Jumped from window being pursued by police = no duty of care to stop injury = illegality applied
Passenger in a vehicle supplying drugs in police chase = collision forseeable = joint enterprise to supply drugs = no defence
Waited and shot burgular = disproportionate = no defence (damages reduced by 2/3)
108
Vicarious Liability
Liable for actions of a third party
employer liable for negligence of employee - claimant can sue employer or employee = **jointly liable**
109
Test for vicarious liability (employer/ employee)
1. Employer/ employee **relationship** must exist
2. Employee committed a **tort**
3. Tort committed **during course of employment**
110
When will an employer not be vicariously liable?
Claim is by an independent contractor
111
Employee or independent contractor?
1. **Control** test - right to direct/ supervise = employee
2. **Integral** test - integral or accessory? contract of services = employee (grants employment rights)
3. **Economic reality test** - used when 1 and 2 cnnot give an answer !! - next cue card
112
Economic Reality test
1. Provides skill in return for wage
2. Employee agrees expressly/ impliedly they will work under control of employer
3. Provisions of contract are consistent with contract of employment
| monthly / weekly payments, tax deducted at source = employeee
113
Factors/ test to impose VL on an employer
Fair, just and reasonable:
* Employer has means to compensate (insurance)
* Result of acitivity by employee on behalf of employer
* Employee actions ikely to be part of business of employer
* Employer by employing employee created risk
* Employee under control of employer (Q of degree)
114
What can an employer not do?
Delegate their duty of care to third party
115
What happens if an employer delegates duty of care?
Liable if employee suffers harm as a result of third party e.g independent contractor actions = breach of duty to employees
116
What must an employee have done for VL to apply?
Committed a **tort** in the **course of employment** i.e on behalf of the company
117
When are actions in the course of employment? (VL)
a) authorised acts of the employee
b) authorised acts carried out in an unauthorised manner
118
When will an authoirsed act be carried out in an unauthorised manner?
Employee does what is asked but negligently - look at **how** the act was carried out (dangerous?)
e.g oil tank driver - cigarette - lorry to set fire and exploded
authorised - delivery
unauthorised - smoking
119
When will an employee act outside the scope of employement? effect on VL?
Acts outside instructions given (e.g told to deliver but decides to deliver **and** unload)
**Employer not vicariously liable**
120
What happens if an employee is prohibited from an activity but does it anyways?
Furthers the employers business = likely to be in the course of employment
*e.g lorry driver smoking causing fire*
Actions **outside the scope of duty** (what the employer should do) = employer not liable
e.g milkman and injured child in car crash
121
When will an employer be liable for an unlawful act by an employee?
**Close connection** between the unlawful act and activities the employee *should* have carried out
*e.g warden sexually abused children in their care*
Part of a **sequence of events**?
*e.g morrisons supermarket case*
122
How can an employer make an employee bear the cose in VL cases?
Both liable = joint tortfeasors
**Common law** - employer can recover damages from the employee if they acted in breach of contract
**Statute** - employer can bring a claim for an employee to contribute
123
When will the court order an employee to pay whole damages in VL cases?
Employer is blameless and it is just and equitable
124
When will an employee breach their contract and be made to repay damages? (VL)
If they do not act with reasonable care & skill = breach of duty to employer
why? - it is an implied term in their contract
Must **repay** damages to employer
so basically indemnify the employer
e.g negligently driving lorry and injured co worker
125
What is an employer expected to provide?
**Reasonable** care to employees:
* Competent staff
* Adequate plant and equipment
* A safe system of work
* Safe premises
126
Employer's duty of care is not...
Strict/ absolute
Liability is determined on the facts and what is **reasonable **in the circumstances
127
Employer DOC and Competent staff
Employer is VL for employee's negligence
Liable if they knew or ought to have known about employee's behaviour
e.g employee trips another - history of behaviour - employer should have known
128
Employer DOC and adequate plant/ equipment
**Plant** - anything used in course of work
Employer must take reasonable steps to provide and maintain plant and equipment (used for purpose of the business)
e.g flagstone cracked when carrying
**Liable for defects even if not visible/ obvious**
Defect must cause the injury
129
When will an employer **not** be liable for failing to provide the safety equipment?
It can be proven C would not have worn/ used the equipment
| Statute also provides for safety equipment
130
Duty to provide a safe system of work
* Ensuring systems and safety measures are complied with
* Warning staff about risks and dangers / guarding against them
e.g physical layout, sequence of work, warnings, instructions, system modifications (if there is damage)
*Very wide!!*
131
Duty to provide safe premises
Employer's premises and third party premises where employers work:
Court consider:
* place of work
* building
* experience (more training if in exp)
* type of work (risk level?)
* degree of control
* employer's knowledge
Duty to take **reasonable care** employees are not injured
e.g employee slipped - employee not liable (done all they could)
e.g knew about hazard and did nothing = liable
132
Visitor - OLA 1957
Lawful visitor:
* right to enter (police)
* invited (guest)
* presence not objected (delivery/ mail)
133
Tresspasser - OLA 1984
Goes onto land without an invitation / unknown to occupier
if known - occupier would object
134
Occupier (occupier's liability)
Legal right to control the premises
135
Occupier's Liability Act 1957
Occupiers duty to visitors for danger due to the state of the premises (acts and omissions)
136
Control - OLA 1957
Legal right even if not in physical possession
e.g taken control of property but not secured it
137
Occupier - OLA 1957
Control over the premises (can be more than 1!! - joing responsibility)
e.g company and the managers held liable
138
Visitor - OLA 1957
a) express permission
b) implied permission (delivery driver)
c) under contract (workmen)
d) right to enter (police)
139
Premises - OLA 1957
Any fixed or moveable structure (vessel, vehicle or aircraft)
e.g abandoned boat = premises
140
When will a visitor change to a tresspasser?
Behaviour/ enter into a restricted area
141
Duty of care to visitors (OLA 1957)
**Reasonable** in the circumstancs to ensure the visitor is safe for the **purposes** for which they **visited/ permitted** to be there
*Depends on the visitor / occupier's knowledge e.g blind = higher standard of care*
| Same as negligence - *look at all factors !!!*
142
Damage covered under OLA 1957
* Personal injury (inc death)
* Property damage
143
What does an occupier **not** need to do under the OLA 1957?
Ensure that the **premises** are safe - **only needs to warn visitors** e.g signs / restricted areas
144
Special categories of visitors under OLA 1957?
* Children (less careful)
* Skilled visitors (higher appreciation for risks)
145
Children and the OLA 1957 (visitors)
Look at the age / risk/ parent or guardian responsibility:
15 years old - no duty of care for being hit by a train
2 years old - no duty of care because the danger was obvious to parents
5 year old - no duty of care parents should take responsibility
146
When will the court likely impose a duty of care to child visitors
Allurement on the land - expected to take greater care
e.g abandoned boat for 2 years = liable
147
Skilled workers and the OLA 1957 (visitors)
Expected to take extra care to protect against risk associated with their work
Obvious risk? Aware of risk?
*e.g chimney sweeps = occupier not liable they were expected to know risk/ danger*
148
What happens if the risk is integral to a skilled workers work? (OLA 1957)
Should have **knowledge** and expected to protect themselves = not liable
149
When does an occupier need to give / not give warnings? (OLA 1957)
**Obvious** risk / danger = no warning
*e.g not putting no swim signs - open water swimming is a clear risk*
**Not obvious** = must warn visitors
*e.g sheer drop at castle was not obvious*
150
When will an occupier not be liable for poor execution of work by a third party?
Discharged duty:
1. Trusted a competent contractor
2. Reasonable steps to ensure competence
3. Reasonable steps to ensure work was properly done
| Must be construction, maintenance or repair
151
When is an occupier *more likley* to discharge their duty?
* Work is technical and complex
* Used a reputable contractor
*Occupier **cannot be expected** to check e.g servicing a lift*
152
When will an occupier be expected to check the work of a third party?
The work is **not complex/ technical**
e.g clearing ice from the steps at the school = easy task
153
What damage is covered under the OLA 1984? (tresspassers)
Personal injury
*not damage to property!!*
154
Who does the OLA 1984 apply to?
* Trespassers
* Right of way
* Visitors - National Parks & Access to Countryside Act 1949
155
When is a duty of care owed under the OLA 1984? (trespassers)
a) Occupier **aware of danger** / reasonable grounds to believe exists
b) Occupier knows / reasonable grounds to believe **trespasser is in danger**
c) In the circumstances the occupier would reasonably be expected to offer **protection**
e.g diving in shallow lake - not expected to protect trespasser = occupier not liable
156
When could a person become a tresspasser?
Ignores warning signs = exceeds implied permission
157
Example of occupier **not** being aware of the danger (OLA 1984)
C dives into lake and hits head on hidden fibreglass
Occupier did know about the danger = no duty
158
When will an occupier know / reasonably believe the tresspasser is the vicinity in danger?
Aware of previous non-visitors in the vicinity
159
When will no duty be owed to tresspasser?
Unreasonable to impose a duty
160
Defences to OLA 1957/ 1984
* Consent
* Restrict / modify / exclude duty
* Warnings
* Contributory negligence
161
When will the defence of consent apply to occupiers?
OLA 1957 & 1984 - visitor knew/ understood and **accepted the risk** = no duty
162
When will an occupier successfully exclude/ modify liability?
* Exclusion brought to C's **attention**
* Set out **conditions** e.g no liability for loss or damage
* Wording must **cover loss suffered**
163
When will a warning be a successful defence for an occupier?
OLA 1957 - Must enable visitors to be safe in all circumstances
OLA 1984 - discourage trespassers - reasonable steps to alert danger
164
What can occupiers not exclude liability for? What legislation apply?
Death/ personal injury
**visitors:**
B2B - Unfair Contract Rerms act 1977
B2C - Trader/ business and visitor is consumer - CRA 2015
*No provision applicable to **private** premises*
165
Effect of Compensation Act 2006 on occupier liability
* Consider if duty of care would discourage **desirable** activities
* No liability if failing to take precautions would stop activity
* Apology/ rectification is not admission of liability
| Freedom to organise public events
166
Which act governs product liability?
Consumer Protection Act **1987**
167
Narrow rule (product liability)
* D must be a **manufacturer** (owes DOC to consumers)
* The product must have **caused** damage (but for)
* Customer is anyone **forseeably affected** by the product
* Intermediate examination - *potentially break the chain!!*
168
Who is a manufacturer? (PL)
Anyone who worked on the product before it reached the customer:
* suppliers
* assemblers
* retailers
* installers
* repairers
Judged at a **reasonable standard of care**
| *WIDE DEFINITION!*
169
What is a product? (PL)
Anything capable of causing injury/ damage inc anything that accompanies the product:
* packing
* tags
* labels
* instructions (failing to include)
170
Who is the ultimate consumer? (PL)
Neighbour principle - anyone reasonably foreseeable to be effected by the product
171
What happens if the claimant was aware of the defect but continues to use it? (PL)
D will **not** be liable
172
What is intermediate examination? (PL)
* Before a product reaches the ultimate consumer
* **Intermediate is expected to examine** the product but FAILS
* Breaks chain of causation
* Manufacturer = not liable
* Intermediate could be liable!!
| e.g contract states the product needs to be examined
173
What happens if the only loss is the defective product/ cost of repair?
Pure economic loss = not recoverable
(not a consequence of physical damage/ personal injury)
174
When might the but for test fail in product liability cases?
* Lapse of time
* Other potential causes e.g installation
* Intermediate examination
175
Defences to product liability under common law
Consent
Contributory negligence
Exclusion of liability
176
When can a defendant rely on consent for PL?
C knew of the defect and continued to use
D must show they *knew about the risk and accepted williingly*
177
When will contributory negligence apply to PL?
C realised the product was not performing well but continues to use it anyways
D can argue this **contributed to own injuries**
178
When can PL be excluded?
* Non-consumers - **reasonableness test** - UCTA 1977 (fair and reasonable in all the circumstances at the time the contract was made)
* Consumers - **fair test** - CRA 2015 (causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer)
179
When is a manufacturer liable under the Consumer Protection Act 1987? (CPA 1987)
Product is defective and caused damage/ injury
**Do not need to prove duty, care and breach** = strict liability
Anyone along the supply chain can be liabe
180
Strict liability
Manufacturer liable without proof of default
181
What must a claimant prove to bring a claim under the CPA 1987?
Suffered injury/ damage **caused** by the defective product
| but for test
182
Damage under the CPA 1987
* Death/ personal injury
* Property damage beyond £275
* **Not damage to business property** i.e must be private property
* **Not damage/ repair to the product itself** = pure economic loss
183
Personal injury
Any disease / impairment of a person's physical or mental conditon
184
What is a defect under CPA 1987
If the **Safety** is not what people are entitled to expect of the product (and products in the product)
***Not dangerous products e.g hot/ sharp***
185
What does the court consider when determining a defect?
* Marketing purpose (instructions/ warnings)
* Expected use
* When it was supplied
186
Product under CPA 1987?
**Any goods**, electricity, components/ raw materials
Goods are:
* substances
* growing crops
* fixtures
* ship
* aircraft
* vehicle
187
Who can be liable under CPA 1987?
* Producer = manufacturer
* Anyone who puts name/ trademark on the product to look as if they are the producer (brand)
* Anyone importing from non-member state of EU into EU
* Suppliers (**ONLY where others in the supply chain cannot be identified e.g manufacturers/ branders**)
188
What cannot be excluded under the CPA 1987?
Liability for defective products
189
How are defendants liable under the CPA 1987?
Joint and several
190
Time limit to bring a claim for PL?
3 years from injury/ damage
191
Limitation period under CPA 1987?
10 years from the date the product was circulated by the defendant
192
Defences under the CPA 1987?
* Defect is down to **legal requirements**
* Defendant **did not supply** the product (e.g stolen)
* Defendant did **not supply** in the **course of business**
* Defect **did not exist** at the time of supply (e.g misuse/ out of date)
* Defect was not known/ unforseeable at the time (lack of **science knowledge**)
* Manufacturer of component part not liable if defect is down to design/ finished product
193
Difference between bringing a claim under common law and CPA 1987? (PL)
**Common law** - prove negligence *(D needs to cover cost of the product)*
**OLA 1987** - strict liability for defects (fault without proof) - *(D does not cover cost)* BUT damage to property must be minimum **£275**
194
Difference in remedies between common law and OLA 1987 (PL)
**Common law** - D will need to cover the cost of defective product (duty/ breach/ damage must be established)
**OLA 1987** - D does not need to cover cost of product = pure economic loss & C can only recover damages if property exceeds £275 and NOT business property
195
What happens if the first manufacturer is aware of the defect?
Previous issue / incident and does nothing = will be liable for PL
negligent - duty of care to act and warn etc ***(usually applies here) ***
statute - not safe as the public expect
196
What is nuisance?
Interference in land
197
Private nuisance
**Unlawful** / unreasonable interference with person's use or enjoyment in land (inc property)
C must suffer **injury, harm** (inc loss of enjoyment) or **damage**
198
Who can sue for private nuisance?
Must have exclusive possession to land/ property (owner or occupier)
Not children/ relatives with no proprietary interest but a **wife with beneficial interest can**
199
Who can be sued for private nuisance?
* Creator of nuisance
* Occupier
* Landlord who authorises nuisance
200
Types of unlawful interference (private nuisance)
* Intrusion on land
* Direct physical injury to land
* Interference with enjoyment of land
**Can recover econimic loss if it is a direct consequence of harm/ damage**
201
When is interference unreasonable? (private nuisance)
Unreasonable use = D’s conduct goes beyond what neighbours should reasonably tolerate
Judged **objectively** - balance C’s right to enjoy land vs D’s right to use theirs:
⚖️ Factors indicating unreasonableness:
* Locality – what’s normal for the area?
* Duration/Frequency – continuous or long-term interference = more likely unreasonable
* Sensitivity of C – no liability if only affects unusually sensitive use
* Malice – deliberate or spiteful acts are unreasonable
* Public benefit – ***may reduce likelihood of liability but not a full defence***
💥 Physical damage = always unreasonable – e.g. damage to property or land
🔮 Foreseeability =
The **type of harm** to C must be reasonably foreseeable
202
Duration/ frequency (private nuisance)
**Always condsidered** for unreasonableness
The nuisance must be **continuous**
Longer nuisance lasted = more likely to be unreasonable
*Can apply even if nuisance is temporary (construction)*
203
Character of the neighbourhood (private nuisance)
**Sometimes** considered for unreasonableness (court will give weight to this!)
Activity is not keeping with the area = unreasonable
e.g smell of food in industrial area = not unreasonable
| Must avoid subtsantial interference - objective test
204
Sensitivity of claimant (and their property/land) (private nuisance)
**Sometimes** considered for unreasonableness
sensitivity of claimant land will **not** make an action unreasonable
e.g damage to heat *sensitive* paper = not unreasonable
205
Public benefit (private nuisance)
**Rarely** considered for unreasonableness
May allow nuisance to continue if public interest outweigh claimant's right
e.g allowing night flights at Heathrow
206
Malice of defendant and private nuisance
**Sometimes** considered for unreasonableness
malice/ ill will = likely to be unreasonable
e.g act to annoy the claimant
207
Public nuisance
*"act or omission which materially affects the reasonable comfort and convenience of life of a **class of the public,** or endangers the life, health, **property**, or safety of the public”*
Personal injury/ harm to a **group or class of people** (claims usually brought by AG)
Claimant must have suffered **special damage**
*Act or omission*
208
What has the court determined a class of people to be? (public nuisance)
* Local **community**
* **Group** with common characteristic
* Highway users
* If there is a wider impact on **public** (e.g diverting emergency services with hoax calls = public are a class)
**Cannot be aimed at many individuals** e.g racist letters send to different parts of the country (received in private)
209
What is special damage? (public nuisance)
The damage suffered by C is **more** than the normal class
210
What type of damage can be claimed in public nuisance?
* Damage to property
* Personal injury
* **Economic loss**
211
Who can sue in public nuisance?
* Anyone effected - do not need interest in land
* AG on behalf of the class
* Local authority
* Individual (if they have suffered special damage)
212
Who can be sued in public nuisance?
* The creator of the nuisance
* The person responsible (owner of land e.g landlord knows tenants are causing nuisance and fails to act)
213
Defences to nuisance
* Consent (voluntary acceptance)
* Contributory negligence
* Prescription (**only private nuisance**)
* Statutory authority
* Act of God
* Unforseeable act of a stranger
* Necessity
* Planning permission
* Claimant came to the nuisance
* Public benefit
* Contributors to nuisance
214
What is prescription when is it applicable?
Defence to private nuisance only
The user has been using the land in an unreasonable way more more than 20 years = claim will fail
Clock starts running when the **claimant became aware of nuisance** (e.g found out in 2005 got until 2025 to claim)
| Likely to succeed
215
What is statutory authority? When is it applicable?
Defence to public & private nuisance
Activity authorised by legislation = claim will fail
| Likely to succeed
216
What is 'act of God'? What is the effect?
Defence to public & private nuisance
Act of nature (God) = claim will fail
**D knows about/ creates nuisance** = does not apply
e.g paddling pool causiing flooding in heavy rainfall
| Likely to succeed
217
What is an unforseeable act of a stranger? When does it apply?
Defence to public & private nuisance
Nuisance caused by stranger/ tresspasser & D had no control / did not foresee = claim will fail
e.g children removing railings
| Likely to succeed
218
What is necessity? When does it apply?
Defence to public & private nuisance
D's actions are reasonable & **imminent threat to life / limb** (possibly property)
e.g not liable for oil spill due to threat to life
| Likely to succeed
219
Plannin permission - when does it apply?
Possible defence to public & private nuisance
Does not make the activity lawful = **unlikely to succed** as a complete defence
(court may look at if permission changed locality of the area when assessing **reasonableness**)
| so more of a consideration than defence?
220
*'Claimant came to the nuisance'* - when does it apply?
Possible defence to public and private nuisance
Claimant moving to the nuisance = **unlikely to succeed** as a defence
221
What will the court do if an activity which has public benefit causes nuisance?
Unlikely to grant injunction of nuisance but may offer an alternative remedy of damages
222
What will the court do if D tries to argue if their nuisance was in isolation it would not amount to nuisance?
**Unlikley to succeed** as a defence
e.g nightclub owner arguing if there was only 1 nightclub there would be no nuisance
223
Types of injunctions for nuisance
* Prohibitory (most common - restrictive)
* Mandatory - D must rectify in certain circumstances (positive action)
* Quia timet - before nuisance occurs
* Interim/ final - stops nuisance until the court can consider fully / order final injunction
**May grant an injunction to limit activity instead of prohibiting**
224
What is a quia timet injunction?
When is it obtained?
Obtained before the nuisance when:
* High likelihood will occur
* Activity would cause damage/ disruption
* D will not be stopped without an injunction
225
When will an injuction be awarded?
Equitable remedy where damages are not appropiate
* C must act promplty
* C must not have encouraged / agreed
* D must be able to comply
226
Damages in nuisance
Limited power - only award up until **date of trial**
physicasl damage to land/ personal discomfort/ inconvenience
227
When is the court likey to use discretion and award damages in nuisance?
Harm suffered is:
* Small
* Quantifiable
* Compensated by damages
* Oppressive to grant an injunction
e.g public interest - *employer would be forced to close* = damages instead of injunction
not impose injunction if : public interst / disproportionate / minor benefit to C / damages adequate
228
Abatement and nuisance
D removes or stops nuisance
Must be reasonable (e.g cutting branches)
Unreasonable actions = tresspass
229
When does Ryland V Fletcher apply
**Nuisance**- non-natural things from a persons land cause **damage to property** owned by someone else (NOT PERSONAL INJURY)
Occupier of land does not need to be at fault!!
non-natural things inc: electricity, gas, chemicals, oil
Case - mill owners hire competent contractors to build resevoir
230
Rules under ***Rylands V Fletcher***
1. D bring / collect something onto the land likely to do a mischief? (e.g fumes, vapours, cattle, sewerage)
2. D made non-natural use of the land *(**look at if the actions are/ were necessary on the land**)*
3. Damage would occur if the **thing** would escape
4. The thing did **escape** cause damage to C's land (forseeable)
| The thing must move from land occupied / owned by D to C's land
231
Defences to Rule in Rylands V Fletcher
* Conset
* Contributory negligence
* Statutory authority i.e required by statute (water supply at high pressure - burst)
* Act of God
* Unforseeable act of a stranger
232
Remedies under R V F ?
Damages ONLY for damage to property (not personal injury)
damage cannot be too remote/ unforseeeable (strict liability)
e.g water reservoir bursts and floods neighboring land:
* flooding is foreseeable
* flood triggers a chemical reaction in a nearby factory causing an explosion = not RF
