1
Q
duty of care
A
the idea of a duty of care is to establish a legal relationship between the parties. in this way it acts as a tool for widening or narrowing the scope of liability in negligence. the claimant must demonstrate that the defendant owed them a duty of care
2
Q
duty of care is established by…
A
- by applying existing precedent or a statutory obligation (‘the robinson approach’)
- where no previous precedent exists, applying the caparo test
3
Q
the robinson approach
A
in robinson v cc west yorkshire police 2018, the supreme court emphasised that a judge should first look to existing precedent when deciding whether a duty of care exists. should only be applied in novel situations
4
Q
examples of well established categories of duty
A
- manufacturer and consumer= donoghue v stevenson
- doctor and patient= bolam v barnet hospital
- drivers and other road users= nettleship v weston
- employer and employee= paris v stepney
- instructor and learner= day v high performance sports
- teacher and student= simonds v isle of wight council
- parent and child
5
Q
donoghue v stevenson 1932
A
C was bought a bottle of ginger beer by a friend. she consumed some then poured it out and a snail fell out. C fell ill but couldn’t claim compensation under contract law as she hadn’t bought the drink. The decision that a manufacturer owed a duty of care to a consumer was created and named the ‘neighbour principle.’
6
Q
robinson v cc west yorkshire 2018
A
police officers knocked over and injured an old lady when trying to arrest a suspect. the supreme court held that the police officers owed passerby a duty of care based on reasonable foresight of harm in the circumstance and that the police weren’t immune from negligence claims
7
Q
the caparo test
A
in novel situations, where there’s no previous statute or precedent establishing a duty of care, judges may refer to the 3 part caparo test.
8
Q
stages of caparo test
A
- was the harm reasonably foreseeable?
- was there sufficient proximity
- is it fair, just and reasonable to impose a duty?
9
Q
- was the harm reasonably foreseeable?
A
it must be foreseeable that D’s act or omission could cause harm to someone. this is an objective test, it asks whether a reasonable person in the defendant’s position would have foreseen that in some way the act or omission might harm others. it is applied in a general way without knowledge of what D did or didn’t do
10
Q
kent v griffiths 2000
A
it was reasonably foreseeable that C’s condition would worsen if the ambulance didn’t arrive promptly and no good reason was given why it failed to do so
11
Q
topp v london country bus 1993
A
a driver of a minibus left the bus unlocked with the keys in it. it was not foreseeable that the bus would be stolen and that the driver would then run someone over
12
Q
- was there sufficient proximity?
A
proximity refers to ‘closeness’ between the claimant and defendant. this can either be in the physical sense or it could be that proximity is created through a legal relationship
13
Q
bourhill v young 1943
A
a pregnant woman miscarried after she heard a motorcycle accident around the corner. she was not close enough in either time or space
14
Q
mcloughlin v o’brien 1983
A
a mother arrived in the immediate aftermath of a serious accident involving family members. there was sufficient proximity
15
Q
- is it fair, just and reasonable to impose a duty?
A
this is a policy based decision in which judges take into account the best interest of society when deciding whether to impose a duty. in this way judges can control and limit the scope of negligence claims
16
Q
hill v chief constable of west yorkshire police 1990
A
not fjr to impose a duty on police for failure to catch killer sooner, the threat of being sued could restrict future investigations and open the floodgates to a large volume of claims
17
Q
capital and countries plc v hampshire cc 1997
A
although firefighters wouldn’t usually be liable for failing to put out a fire, it was fjr to impose a duty when a firefighter turned off sprinklers and made the fire damage worse
18
Q
breach of duty
A
to determine whether a duty had been breached:
1. comparing D’s conduct with the standard of care expected from a reasonable person and
2. considering various risk factors which may raise of lower that standard
19
Q
the reasonable person test
A
the test is objective: a defendant will have breached their duty of care if he or she fails to act in a way which a reasonable person wouldn’t have
20
Q
nettleship v weston
A
a learner driver crashed on her third lesson, injuring her instructor. the fact that the defendant was a learner wasn’t relevant. she was judged against the standard of a reasonably competent driver and no allowance was made for her inexperience
21
Q
only instances where the special characteristics of the defendant will be relevant include:
A
- children, where the standard of care will be that of the reasonable child of the same age as the defendant
- amateurs can be judged against other reasonably skilled amateurs doing the same task provided it is one that a reasonable homeowner might carry out
- professionals/experts will be judged against competent experts in the same field
22
Q
montgomery v lanarkshire health board
A
in relation to the medical profession, doctors must ensure patients are fully informed of all material risks involved in treatment and of reasonable alternatives
23
Q
probability of harm
A
if the probability of harm is low, D will not be expected to take as much care to guard against the risk. if there is a high probability of harm, a higher standard of care will be expected. the following two cases illustrate this point well
24
Q
bolton v stone
A
where the likelihood of a cricket ball being hit out of the ground and injuring a passer-by was very low, there was no breach of duty by the cricket club as it had already taken reasonable precautions
25
haley v leb
workmen propped up a hammer to warn people of a hole in the road. a blind man fell into the hole. because blind people regularly used the road, the court decided that the probability of harm was high and that the workmen should have done more to guard people against this risk
26
seriousness of potential harm
if the potential could be serious, e.g. because the claimant is especially vulnerable, the standard of care might be raised. in other words, the reasonable person would take greater precautions than normal
27
paris v stepney
the claimant was a welder who had already lost sight in one eye. his employer was used a higher duty to provide protective goggles to him because the risk to him of becoming completely blind was greater than other employees
28
cost and practicality of taking precautions
the court will balance the size of the risk with the cost and effort to the defendant in guarding against it
29
latimer v aec ltd
C suffered injury when he slipped on a wet floor. the court decided that D had taken sensible precautions by laying sawdust on the factory floor to reduce the effects of flooding. to eliminate the risk of slipping would have meant closing the factory, which would have been disproportionate to the level of risk
30
potential benefits (social utility)
the standard of care may be lower if there is a greater public benefit to the activity
31
day v high performance sports
C had frozen while climbing an indoor wall and had to be rescued. the rescuer caused the claimant to fall and become injured. in this case, the benefit outweighed any potential risk so the standard of care was lower
32
unknown risks
if the risk of harm isn't known, there can be no breach of duty. for instance, in roe v minister of health, C was a patient who was paralysed by a contaminated anaesthetic. since it was unknown to medical experts at the time that contamination could occur in the way that it did, there was no breach
33
damage
the third part of any negligence claim is for the claimant to prove that he or she has suffered damage cause by the defendant's breach of duty. both factual causation and remoteness must be proved in order for a negligence claim to succeed
34
factual causation
factual causation is the starting point and is usually straight forward. it is decided by the "but for" test. but for d's act or omission would the claimant have suffered damage
35
barnett v chelsea and kensington hospital
d, a hospital doctor, failed to diagnose b's arsenic poisoning and instead sent him home where he later died. "but for" the failure to diagnose, b would have died anyway. no factual causation
36
chester v afshar
doctor failed to warn patient about risks involved in back surgery. but for doctors failure to warn, c would not have had surgery and suffered injury. factual causation was established
37
intervening acts
an intervening act can break the chain of causation
38
knightly v jones
d's negligent driving caused an accident in a tunnel. when the police arrived on the scene the senior officer sent a colleague against the flow of traffic to close the tunnel, causing a second accident. the conduct of the police officer was unreasonable that it broke the chain
39
remoteness
the claimant can only claim for types of loss that are a reasonably foreseeable result of d's breach. if a loss is not reasonably foreseeable then it is not recoverable
40
the wagon mound (no.1)
d's negligently spilled oil in the water of a harbour. two days later, sparks from welding at a nearby dock ignited the oil, causing fire damage to the dock and ship's moored there. although oil pollution damage was reasonable foreseeable, the damage by fire was too remote
41
hughes v lord advocate
D left unguarded an open manhole surrounded by paraffin lamps. a young boy, while investigating, knocked one of the lamps into the hole and was burned in the subsequent explosion. his claim succeeded because burn injuries cause by an unattended lamp were foreseeable even if what actually happened weren't
42
thin skull rule
if the type of injury or damage is reasonably foreseeable, but it is much more serious because the claimant had a pre-existing condition, then d is liable for all the subsequent consequences
43
smith v leech brain
c, who had a rare cancer gene, was burnt by molten metal at work. this brought on the cancer and he eventually died. the court decided that the burn was a reasonably foreseeable result of d's negligence and that d had to take c as he found him, making him liable for the death
44
contributory negligence
- this is where the defendant alleges that the claimant has partly caused or contributed to the damage
- the law reform (contributory negligence) act 1945 provides that a judge may reduce any damages awarded to a claimant according to the extent to which the claimant contributed to his or her injuries
- partial defence, both defiant and claimant are to blame
45
Froom v butcher
C’s head injures were held to have been caused by his decision not to wear a seatbelt and his damages were reduced by 20%. A similar approach is taken to motorcyclists and cyclists who fail to wear crash helmets. However, if wearing a seatbelt or helmet would have made no difference, no deduction should be made. If wearing a seatbelt would have meant no injury, c can be 100% contributory negligence
46
sayers v Harlow vdc
A council was liable in negligence when c got trapped inside a public loo. C tried to get out by climbing on toilet roll holder and slipped when it gave way. C’s damages were reduced by 25% because of the way she tried to escape
47
Jones v livox quarries
C was riding on the back of a vehicle at work, against company rules, when a dumper truck crashed into the back of it. C had contributed to his injuries through his own negligence so damages were reduced by 20%
48
consent (volenti non fit injuria)
- the defence of consent is based on the idea that if the claimant has voluntarily agreed to a risk of harm with full knowledge of the risk, then he or she cannot complain when they do suffer injury
- consent or volenti is a complete defence, meaning that if successfully pleaded by the defendant, the claimant will receive no damages
49
morris v murray
after spending an afternoon drinking, c and d decided to take a fight in d's light aircraft. shortly after take-off, the plane crashed killing d and seriously injuring c. c brought a negligent claim against d's estate. the court of appeal decided that c had voluntarily assumed the risk of injury by accepting a flight in an aircraft by an obviously heavily intoxicated pilot
50
ogwo v taylor
d negligently set fire to his house when attempting to use a blowtorch. c was a fireman who attended the blaze. despite wearing breathing apparatus and using protective clothing, c suffered burns from the intense heat. d's argument that c consented to the injuries was rejected
51
remedies in negligence
- in tort, the court can award a successful claimant monetary compensation for personal injury or damage to property
- the aim of compensatory damages is to put the claimant in the same position that he or she would have been had the tort not taken place
- two types: general and special
52
special damages
these cover pre-trial expenses incurred from the date of the accident to the date of the judgement. they can be calculated in financial terms and are therefore "pecuniary" losses
53
pre-trial expenses
loss of earnings or expenses up to date of trial
54
loss of property
- if destroyed, this will be the market value
- if damaged, this will be the cost of repair (unless repair cost exceeds the market value, when the latter is used)
55
general damages
these cover post-trial losses. these damages are complicated to calculate. it is for the judge to decide how much (or little) to award, following argument by counsel. they include both pecuniary losses and "non- pecuniary" losses
56
future losses
future medical care and personal assistance, such as adapting a house, future loss of earnings. pecuniary loss
57
pain and suffering
claimant must be able to appreciate his or her condition, i.e. no award for pain if the claimant is unconscious or cannot feel pain. non-pecuniary loss
58
loss of amenity
loss of things claimant used to enjoy. damages may be increased where a claimant had a particular skill or hobby/ non-pecuniary loss
59
specific injuries
the claimant can claim a set amount for the injury itself. these are calculated with reference to guidelines. non-pecuniary loss
60
lump sums and structured settlements
- damages are usually awarded in a lump sum
- however, s.2 damages act 1996 allows the parties to agree structured settlements
61
mitigation of loss
- the claimant is under a duty to keep their loss to a reasonable level
- for example, the claimant cannot claim for private treatment for the injury if suitable treatment is available under the NHS.
62
no fault compensation schemes
- quicker and less delays because there would be no need to involve insurance companies or lawyers
- cheaper since there would be no need to pay lawyer's costs
- less confrontational
- compensation would be paid to all those injured, not just those who can prove the fault of others
63
ideas for reform
- no fault compensation schemes
- out of court methods of dispute resolution
64
who is an occupier?
an occupier is someone who had control of the premises
65
wheat v lacon
the manager of a pub was an occupier because he had control of the premises. he lived with his wife in the pub and had the right to rent out rooms, but he was not the owner of the premises
66
bailey v armes
neither the parents who owned the flat nor the supermarket had a sufficient degree of control over the roof areas to be occupiers
67
premises
broadly defined in s.1(2) and includes land, buildings, houses, as well as vehicles and fixed or moveable structures
68
lawful visitor
a lawful visitor is someone who has express or implied permission to enter the premises, and those with a contractual or legal right to enter
69
occupiers liability act 1957
applies to lawful visitors
70
trespasser
a trespasser is usually a person who has no permission or authority to be on the occupier's premises. a lawful visitor can become a trespasser by exceeding the permission granted to them
71
occupiers liability act 1984
applies to trespassers
72
geary v wetherspoon
the claimant was leaving a pub when she attempted to slide down the banister of a grand suitcase. she fell backwards falling onto the floor 12 feet below, sustaining a spinal fracture. her injuries weren't caused due to unsafe premises, but her decisions. no liability
73
liability to lawful visitors
ola 1957 states than an occupier of premises owes a common duty of care to all lawful visitors
74
s.2(2) ola 1957
"to take such care as in all the circumstances is reasonable to keep the visitor reasonably safe for the purpose for which he is invited to be there"
75
laverton v kiapasha takeaway
a customer slipped over in a takeaway on a rainy day, breaking her ankle. the owners had fitted special slip resistant tiles and regularly mopped the floor on rainy days. the court decided that the shop owners had taken reasonable care to ensure their customers were safe. there is no duty to keep visitors completely safe. there is no duty to keep visitors completely safe, only to do what is reasonable in circumstances
76
rochester cathedral v debell
the claimant tripped as he was walking through the precincts of the cathedral owing to a minor defect in a bollard in the pavement. in rejecting the claimant's case, the court made clear:
- tripping, slipping and falling are everyday occurrences happen
- the occupier is under a duty to make the premises reasonable safe for visitors, not to guarantee their safety
- the state of the premises must pose a "real source of danger" which a reasonable occupier would recognise remedial action
77
s.2 (3) (a) ola 1957
provides that an occupier must be prepared for children to be less careful than adults meaning a higher standard of care is required
78
jolley v sutton
a child found an abandoned boat and decided to repair it. while the claimant was working, the boat fell on him, leaving him paralysed. the court found the council had breached their duty of care by failing to move the boat. the boat was something that would be attractive to kids
79
phipps v rochester corporation
an occupier is entitled to assume that very young children will be accompanied by someone looking after them, and that they may reduce the standard of care expected from the occupier
80
s.2 (3) (b) ola 1957
an occupier may expect that a person in the exercise of his trade will appreciate and guard against any special risks which they ought to know about through their work
81
roles v nathan
two chimney sweeps died from inhaling poisonous fumes, despite being warned about the danger. the claim failed because this was exactly the sort of special risk arising from their job which they should have been familiar with and guarded against
82
s.2 (4) (b) ola 1957
an occupier can use following defences to a claim brought under ola 1957. where a visitor is injured due to a danger created by an independent contractor, the occupier has a defence under s.2 (4) (b) ola 1957
provided:
- it was reasonable to hire a contractor
- reasonable precautions were taken to ensure the contractor was competent
- if the nature of the work allows, reasonable checks were taken to inspect the work
83
haseldine v daw
the claimant was killed when a lift plunged to the bottom of its shaft after being negligently repaired by an independent contractor. the court decided the occupier wasn't liable for the death. the occupiers had fulfilled their duty of care by appointing an apparently competent firm to maintain the lift, and the highly technical nature of the work meant that it was reasonable to entrust the task to a specialist
84
bottomley v todmorden cricket club
a guest was injured during a firework display. a cricket club had hired a stunt team to put on the display and the team used gunpowder and petrol. the cricket club were liable because they had failed to exercise reasonable care to choose safe and competent contractors
85
woodward v mayor of hastings
a child was injured on school steps that were left icy after workmen had cleared the snow off them earlier. the occupiers were liable as they failed to take reasonable steps to check the work had been done properly and the danger should have been obvious to them
86
warning notices
s.2 (4) (a) ola 1957 provides that the occupiers liability is discharged if he or she gives effective warning of the danger. the warning must be sufficient to enable the visitor to be reasonably safe
87
rae v murrs
the claimant entered the door of an unlit shed and fell into a deep pit just before he had chance to switch his torch on. the court decided that the warning sign wasn't sufficient to keep visitors safe because it couldnt be seen. the occupier should have done more
88
exclusion clauses
an exclusion clause may operate to restrict or prevent a duty from arising in the first place. occupiers of residential properties can restrict liability for death, personal injury and property damage
89
contributory negligence
courts will consider the degree of care a reasonable visitor can be expected to take for their own safety and may reduce compensation if the claimant is partly responsible for his or her injuries
90
consent
this is a complete defence which applies if the claimant willingly accepted a risk of negligence on the part of the occupier
91
s.1 (8)
a trespasser who suffers injury due to the state of d's premises may be able to claim for personal injury, this reflects the view that trespassers are deserving of less protection than lawful visitors
92
s.1 (3) ola 1984
provides the occupier will only owe d a duty if:
a) he or she is aware of the danger or has reasonable grounds to believe it exists
b) he or she knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger or may come into vicinity of danger
c) the risk is one against which, in all circumstances, he or she may reasonably be expected to offer the other some protection
93
rhind v astbury
as the occupier didnt know of a submerged fibreglass container resting on the bottom of a lake on its premises, no duty was owed to a trespasser who injured himself jumping into the lake- s.1 (3) (a)
94
higgs v foster
the claim failed in this case because the occupier had no reason to suspect that the trespasser would come within the vicinity of the danger, s.1 (3) (b)
95
donoghue v folestone properties
the claimant was injured when he dived into a harbour in the middle of a winter's night. the occupier didnt owe a duty as they wouldn't expect that a trespasser might be present or jump into the harbour at that time of day or year
96
tomlinson v congleton bc
the claimant was injured diving into a lake. like many others, he had ignored a sign, the council planned to make the lake inaccessible but hadn't yet done so through lack of funds. no duty was owed under s.1 (3) (c) as it wouldnt be reasonable to offer protection against a natural feature of the lake. the risk didnt arise from anything done or omitted to he done on the premises
97
s.1 (4) ola 1984
the duty owed by occupiers to trespassers is "to take such care as in all the circumstances is reasonable to see that doesnt suffer injury on the premises by reason of the danger concerned"
98
ratcliff v mcconnell
a student climbed over a locked gate after dark and dived into an outdoor swimming pool. he misjudged his dive and was seriously injured. the court held that the occupier wasnt required to warn adult trespassers of the risk of injury arising from obvious dangers. it is well known that swimming pools vary in depth and diving without checking the depth is dangerous
99
keown v coventry nhs trust
an 11 year old boy climbed a fire escape to show off to his friends and was badly inured when he fell. the court decided that the occupier owed no duty of care to the claimant as the accident happened through his own dangerous behaviour, rather than any risk arising from the state of the fire escape
100
warning notices
a warning sign can be an effective defence- s.1 (5). it would have to make the danger clear
101
private nuisance
a use of land which substantially interferes with the ordinary use and enjoyment of neighbouring land, judged by the standards of an ordinary person
102
the claimant must prove to establish liability...
1. right to bring a claim- that they have a right to bring an action and the person they are suing is capable of the defendant
2. interference- there is a substantial interference in the form of physical damage or loss of amenity of land
3. unlawful- that the interreference is sufficiently serious in all the circumstances to be unlawful
103
right to bring an action- claimant
the claimant will have a right to bring an action if they have a legal interest in the land and they have been affected by the interreference
104
hunter v canary wharf
owners and tenants of property in the docklands area had a right to bring an action when an office tower was built which interfered with their tv reception, but not members of their families because they didn't have a legal interest in the property
105
tefley v chitty
d was a local authority who allowed go-kart racing on its land and was therefore liable for the noise and disturbance caused by the go-karts
106
liability of defendant
- a person can be liable for a nuisance that he didnt create, if he "adopts" the activity in question
- d can also be liable where the nuisance is a result of natural causes, provided d was aware of the nuisance and failed to deal with it
- d doesnt need to have an interest in the land at the time the nuisance occurs
107
sedlegh denfield v o'callaghan
d knew that a 3rd party had laid a pipe on his land which was prone to blocking and creating a risk of flooding to c's land. even though d hadn't consented to this pipe being laid in the first place, d was liable when c's land was flooded because he had allowed the danger to continue
108
leakey v national trust
the national trust were aware that a large natural mound on their land could slip. one summer it did slip and damaged c's cottage. ds were liable as they knew that a slippage might happen and they failed to prevent it
109
anthony v coal authority
the coal authority landscaped a former coal mine and then sold the land. a fire started spontaneously from coal waste on the site, causing fumes to interfere with people living in the area. the ca were liable because they were aware of the problem when they were aware of the problem when they had control of the land and failed to prevent it
110
interference- physical damage
damage to plants or crops from fumes, halsey v esso
111
interference- loss of amenity
loss of amenity which affects the ordinary comfort of human existence. there is no physical damage, but c's ability to use or enjoy his land is affected by d's activities
112
williams v network rail
the court of appeal held that the enroachment of japanese knotweed onto the claimants land amounted to a loss of amenity even if there was no physical damage because it carries the risk of future physical damage to buildings and the mere presence of it affects on owners ability to develop their property
113
unlawful interference
even where d's activity interferes with c's use of land, it will not give rise to liability if d is making no more than a common and ordinary use of land and if the activity was conveniently done, with proper consideration for the interests of neighbours
114
two stages for unlawful interference
1. part of the ordinary use and occupation of land
2. whether they are conveniently done, with proper consideration for the interests of neighbours
115
is d making more than a common and ordinary use of land?
what amounts to an ordinary use of land depends on the character or nature of the area
116
sturges v bridgman`
noise and vibrations from industrial equipment in a confectioners was a nuisance in a quiet residential area because the locality wasn't devoted to manufacture
117
laws v florinplace
a sex shop in a residential area was deemed to making a substantial interference for local residents, affecting the ordinary comfort of human existence
118
special sensitivity
special sensitivity of the claimant isnt relevant. a claimant may feel that their neighbour is committing a nuisance, but this may be due to their own unreasonably high standards or peculiar requirements. the correct question should be whether the damage was foreseeable
119
robinson v kilvert
heat generated by d, making boxes in the basement, damaged delicate paper belonging to c on the ground floor. d wasn't liable as the damage was due to the special sensitivity of the paper
120
network rail v morris
new railway tracks interfered with sensitive recording equipment used in c's studio. c couldn't claim for damage to his business because the interference was extraordinary and unforeseeable
121
was the activity conveniently done?
to decide whether the activity was conveniently done, the length and degree of the nuisance has to be considered, as well as the time of day. an interference which is continuous and at unreasonable hours of the day is likely to be actionable
122
de keyser's royal hotel v spicer bros
an injunction was granted to prevent building work at night despite the fact that the work was only temporary. the interference was unreasonable since it interfered with c's sleep
123
barr v biffa waste
storage of organic material in a landfill site was a nuisance as it led to strong garbage smells on many occasions over 5 years
124
crown river cruises v kimbolton fireworks
burning debris from d's firework display landed on a nearby barge that caught fire. d was liable despite the nuisance only lasting 20 minutes because there was physical damage
125
christine v davey
c gave music lessons at home. d, her neighbour, started banging on the walls, beating trays and shouting in retaliation. the fact that d's actions were motivated by malice was a factor in deciding there was a nuisance
126
malicious acts
a deliberately harmful or malicious act by d is more likely to be considered unlawful
127
fearn v tate gallery
the supreme court confirmed that social utility may be considered in deciding what remedy to grant and may justify awarding damages rather than an injunction but it doesnt prevent a finding of an actionable nuisance
128
miller v jackson
cricket balls regularly landed in c's garden from the cricket ground nearby. the court ruled that this was a nuisance and that the community use of the garden didnt outweigh the private use of the garden. however, the court refused an injunction and awarded damages as an appropriate balance between the rights of the parties
129
factors to consider when deciding if an interference is unlawful
- duration and extent
- physical damage always unlawful
- locality
- c's special sensitivity isnt relevant
- malice
- social utility may affect remedy only
130
defences to private nusicance- prescription
if d has carried out the activity causing the nuisance for at least 20 years and c had been aware of this and not complained, d has a defence known as a "prescriptive right" to carry out the activity
131
sturges v bridgman
d cannot argue that c is only suffering a nuisance because they moved into an area or moved closer to it. in this case, the consulting room c built in his garden was closer to the factory than his house where he originally treated patients but d couldn't argue that c moved to the nuisance
132
statutory authority
an action will fail if the nuisance is created by a public body acting under staturoy authority
133
allen v gulf oil
c couldnt sue in nuisance about noise and fumes from an oil refinery as the refinery was built under powers in an act of parl
134
planning permission
planning permission could be relevant to the question of whether d is making more than an ordinary use of land if it has changed the character of the neighbourhood
135
gillingham bc v medway
the granting of planning permission to turn a disused dockyard into a commercial port meant that the area around it could no longer be regarded as residential, but industrial, so residents of nearby roads couldnt complain about the disturbance from heavy lorries
136
watson v croft promo sport
planning permission was granted for a motor racing track for 210 days a year. c's claim in nuisance succeeded as the CoA felt that the planning permission hadnt changed the character of the area which remained essentially rural. the noise therefore constituted an actionable nuisance. an injunction was granted
137
remedies- injunction
this is an discretionary court order prohibiting or controlling an activity. in a nuisance claim, c will generally be asking the court to order that the offending activity be stopped or confined to defined limits
138
kennaway v thompson
a partial injunction was granted limiting the number of races that d could organise at a powerboat club
139
remedies- abatement
this is the right of the claimant to take reasonable steps to deal with any nuisance himself
140
rylands v fletcher
d constructed a reservoir on their land. unknown to d, water from the reservoir filtered through to a disused mine shaft and then spread to a working mine owned by c causing extensive damage. ds were strictly liable for the damage caused by a non-natural use of land
141
how to establish liability?
1. that they have the right to bring an action and the person they are suing is capable of being the d
2. that the d brought onto their land and kept there
3. a dangerous thing
4. in extraordinary and unusual circumstances
5. the thing escaped onto adjoining property
6. caused reasonably foreseeable damage
142
claimant
the claimant must have a legal interest inland to pursue a claim- as in the case of nuisance. this means the claimant will usually be an owner of land or tenant
143
transco v stockport
d's water pipe supplying a block of flats burst and caused a landship which damaged c's gas main. although the claim ultimately failed, c had an interest in land as the owner of the affected gas main
144
defendant
this is the person who had control over the land on which the dangerous thing is stored
145
d brings onto the land
there must be a bringing onto the land of a substance by the d. there can be no liability if the thing in question is already naturally present on the land or if it accumulates naturally
146
giles v walker
d ploughed up his field which then became self sown with thistles that spread to neighbouring land. the claim failed as the accumulation of thistles was natural
147
dangerous thing
the thing brought onto d's land must be dangerous, likely to do damage if it escapes. it could also include things not inherently a dangerous, provided it poses and exceptional risk if it escapes
148
hale v jennings
a chair from a "chair o plane" fairground ride that flew off its moorings mid-ride was dangerous
149
damage by fire
damage by fire spreading doesnt usually give rise to liability in rylands. this is because it must be the thing which fuels the fire which escapes and is dangerous, rather than the fire itself
150
perry v kendricks
d wasn't liable for the consequences of an explosion because it was caused by a 3rd party placing a lit match in the petrol tanks of d's coaches
151
stannard v gore
d ran a tyre fitting business and stored tyres that caught fire. the fire spread to c's adjoining premises. the CoA decided that in the light of transco, ds werent exceptionally dangerous; the activity carried on by ds was an ordinary activity on alight industrial estate; and they tyres hadnt "escaped"
152
defences- act of god
a natural event so enormous that it cannot be either foreseen or guarded against
153
non-natural use
"non natural" use of land is a complex concept an one which will vary depending on time and place. d's used of the land must be extraordinary and unusual
154
defences- act of a stranger
D isnt liable is the escape is caused by the deliberate and unforeseen act of a stranger
155
cambridge water v eastern counties leather
spillages of solvents from d's factory seeped into the soil and contaminated the water from a spring owned by c. the court held that bulk storage of chemicals was a non-natural use
155
rickards v lothian
non natural use was defined as "some special use bringing with it increased danger to others and mustn't merely be the ordinary use of the land
156
transco v stockport (non-natural use)
supplying water to flats was an ordinary use of the land so the claim failed
157
LMS International v styrene
a fire started in d's factory that contained a large quantity of flammable material. it spread to c's adjoining properly. d was liable, as it had accumulated things that were a known fire risk. the storage was a non-natural use of the land
158
nichols v marsland
d wasnt liable when water escaped from an artificial lake after a prolonged and violent rain storm
159
defences- statutory authority
d wasn't liable if the escape occurs during activities authorised by an act of parl
160
green v chelsea waterworks
d wasn't liable as d had a statutory duty to maintain a supply of water
161
defences- volenti non fit injuria
there will be no liability where c has consented to the thing that is accumulated by d
162
peters v prince of wales theatre
ds werent liable for a flood caused to c's adjacent property when pipes in sprinkler's burst, as the sprinkler systems was installed for the benefit of both and c consented to the sprinkler systems when he took on the lease
163
escape
there must be an escape from land that D controls to land that he/she doesnt control
164
damage
the escaping thing must cause reasonably foreseeable damage to adjoining land
165
cambridge water v eastern counties leather (damage)
c's claim failed because it wasnt reasonable foreseeable that c's activities would contaminate d's spring as it was too remote from the site of the spillage
166
barclays bank v various claimants
167
vicarious liability
a form of liability by which the defendant is held liable for a tort committed by a third party
168
two stage test
1. the relationship between the d and the tortfeasor must be one of employment or akin to employment
2. there must be a close connection between the wrongful conduct and acts the tortfeasor was authorised to do so that it can fairly and properly be regarded as done by the tortfeasor in the course of their employment
169
"employee" relationship
the relationship between the d and the tortfeasor must be one which makes it proper for the law to make d pay for the fault of the other. an employer is only liable for torts committed by employees
170
employee
- worker who is employed and has a contract of employment
- contract of service
- if an employee commits a tort, the employer can be sued by the victim
171
barclays bank v various claimants
a doctor who conducted medical assessments for prospective employees of BB was an IC. he had a portfolio of patients and clients, was paid a fee for each report and was free to refuse barclays requests
172
control test
the ability to control the way a job is done. an employee is told what to do and how to do it, whereas an ic is only told what to do
172
barry congregation v bxb
a church elder raped a congregation member. he abused his friendship with the victim rather than any church responsibility, so the JWO wasnt vicariously liable
173
mersey docks and harbour board v coggins + griffiths
the harbour board hire their crane and driver out to steve dores for loading work. the driver remained the employee of the board as they had the power to tell the driver the way in which his work should be carried, paid his wages and retained the power to sack him
174
intergration test
a worker will be an employee if his work is fully intergrated into the business: stevenson, jordan and harrison v mcdonald and evans. if a person's work is only accessory to the business, that person isnt an employee
175
economic reality test
the court said that 3 factors must exist before a worker can be classified as an employee:
1. the employee agrees to provide work or skill in return for a wage
2. the employee accepts that the work will be subject to the control of the employer
3. considerations in contract are consistent with there being a contract of employment, rather than an other relationship
176
ready mixed concrete v minister of pensions
the workers were lorry drivers. they wore a uniform; their lorries were painted in company colours; they had to follow instructions and couldnt work for anyone else. the court decided that the drivers were independent contractors because they owned their lorries and were responsible for repairs and running costs
177
akin to employment test for non traditional employment relationships
the courts have held that a person can be held vicariously liable for the acts of someone who isnt technically their employee, provided the relationship between them is sufficiently akin to employment
178
catholic child welfare society v various claimants
a group of men had been abused by their teachers at a school for boys in care. the teachers were members of the institute of brothers of the christian schools, a religious organisation which sent its members to the school as part of its mission to teach children christian values. the members had contracts of employment with the school. the court had to decide whether the institute should share responsibility with the school for acts of its members
179
cox v ministry of justice
a prisoner helping in the canteen negligently injured the catering manager at a prison. the prison service was vicariously liable because the relationship between the prison service and the prisoner was similar to that of employer and employee
180
close connection test
the wrongful act must be so closely connected with acts that the tort feasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasors employment
181
employee acting negligently
if an employee does his or her job badly, the employer can be vicariously liable for their actions which cause damage to another
182
century insurance v northern ireland transport board
a driver was delivering petrol to a petrol station and discarded a match when he lit a cigarette. the employer was vicariously liable for the explosion that resulted because the driver was carrying out the task he was employed to do, albeit in a negligent way
183
acting against orders
if an employee is doing his or her job, but acts against orders in the way they do it. the employer can still be vicariously liable if those actions further the employer's business
184
limpus v london general omnibus
the employer instructed its bus drivers not to race other drivers when collecting passengers. one driver caused an accident when racing. the employer was vicariously liable because as the time the driver was acting for his employers business
185
rose v plenty
a milkman used a child helper, depsite instructions from his employer not to allow children to ride on the milk float. the employer was vicariously liable when the child was injured because the employer was benefiting from the work undertaken by the boy
186
twine v beans express
c's husband was killed through the negligence of a delivery driver who had been forbidden to give lifts. the employers werent liable as the employer was doing an authorised act and the employers were gaining no benefit from it
187
employee acting on a "frolic" of their own
if an employee causes injury or damage to another while doing something which has nothing to do with their employment, or at a time or place outside of work, an employer will usually not be vicariously liable
188
hilton v thomas burton
workers took an unauthorised break and went to a cafe in the works van. on the way back, the drivers negligent driving killed one of the men travelling in the van. the employer wasnt liable since the workers were "on a frolic of their own."
189
beard v london general omnibus
a bus conductor turned a bus around and injured a member of the public. the employer wasnt vicariously liable, as the conductor wasnt employed to drive
190
chell v tarmac
an employer wasnt liable for a practical joke played by one of its employees. the joke had no connection with the tortfeasors employment
191
fletcher v chancery supplies
a shop assistance was crossing the road opposite his shop when he negligently walked into the path of a cyclist. he was still wearing a work polo shirt and work boots. this was three quarters of an hour after his shift had ended. there was no sufficiently close connections between the employment and negligence for it to be fair
192
criminal actions of an employee
offences against the person are also considered torts of trespass to the person so an employer can be liable for the crimes of an employee provided there is a close connection between the crime and acts that the employee was authorised to do
193
lister v wesley hall
a warden in a care home sexually abused boys and was convicted of criminal offences. the employer was vicariously liable as the acts of the employee were so closely connected with his employment it was fair, just and reasonable to hold the employer liable
194
martis v pollock
a bouncer inflicted serious injuries on a customer and was jailed for criminal offences. the nightclub were vicariously liable for the bouncers actions as he was encouraged to use force and be violent so his criminal actions were closely connected
195
mohamud v morrison supermarket
c went to a morrisons petrol station to ask if he could print off some images from a USB stick. the worker responded with verbal abuse, followed c to his car and assaulted him. the sc considered that the employee was acting within the course of employment as it was at work so it was closely connected
196
morrisons v various
a disgruntled employee working in the finance department committed an unauthorised data breach in pursuit of a personal vendetta by the employee against his employer the employer wasnt vicariously liable
law
flashcards
Decks in class (9)
# Cards
