Tort

Question 1

Negligence: DOC

Define the three parts of the Caparo test and why is it used.

Answer 1

1) Foreseeability - reasonable foresight of harm to the claimant
2)Proximity relationship between claimant and defendant
3) That it is fair just and reasonable to impose a duty.

The Caparo test is used if a duty has not already been established and it is a ‘novel’ situation. The claimant needs to apply this three part test to show a duty is owed.

Question 2

Whilst there is no duty with omissions to act there are exceptions to this. What are they?

Answer 2

1) A duty not to make the situation worse
2) the duty to act positively in tort if a person has some sort of power or control over the other person or object.

Question 3

Negligence: DOC
What are the most common established duty situations? Can you name four or five?

Answer 3

1) Road users
2)doctor to patient
3)employer to employee
4)manufacturer to consumer
5)teacher to pupil

Question 4

Negligence: DOC
When can novel duties be relied upon by a claimant?

Answer 4

When there is physical damage - either personal injury or damage to property. It does not include pure economic loss or pure psychiatric harm.

Question 5

Negligence: DOC

What did the case of Donaghue and Stevenson 1932 establish?

Answer 5

The ‘neighbour principle’.
It established how a duty of care can be owed in new or novel situations (manufacturer to consumer in that case). Caparo 1990 was later built on this case.

Question 6

Negligence: DOC

What does the third limb of the Caparo test allow the courts to achieve?

Answer 6

The third limb requires that it must be fair, just and reasonable to impose a duty of care. This allows a court to reach a decision based on policy matters (those which concern wider public interest). This limits the neighbourhood principle established in Donahue which relates to the first two limbs of the Caparo Test.

Question 7

Negligence: DOC

Asides from the three stage test, what was the ratio of Caparo?

Answer 7

That there was insufficent proximity between claimant and defendant and so the claim for damages failed.

Question 8

Negligence: DOC

Lack of proximity between the parties may be regarded as the basis for special limitations upon the duty of care owed in certain types of cases. What kind of cases fall under this idea?

Answer 8

1) Ommissions
2) Pure economic less
3) Pure psychiatric harm
4) Harm caused by a public body (potentially).

Question 9

Negligence: DOC

In Hill v Chief Constable of West Yorkshire (1989) why were the police exonerated from liability?

Answer 9

Because they did not owe a duty of care to any individual, they owed a duty or care to the public at large. It was a policy based decision deemed to be fair, just and reasonable. If a duty has been imposed it would have opened the floodgates.

Question 10

Negligence: Breach

How is the standard of care measured for the general public?

Answer 10

A defendant will be measured by what a reasonable person would do. Blyth v B’ham Waterworks. The test is objective ( very important to remember)

Question 11

Negligence: Breach

How is the standard of care measured for those with special skills?

Answer 11

Those with special skills must meet the standards of their profession ( Bolam) BUT if those special standards are not up to scratch there can still be a breach ( Bolitho). Likewise the under-skilled defendant is expected to reach the same level of competence as someone in their field ( Nettleship v Weston) ( Wilshere v Essex - underskilled doctor)

Question 12

Negligence: Breach
How is the standard of care measured for children?

Answer 12

A child defendant will be expected to show as much care as can reasonably be expected of an ordinary child of the same age( Mullin - Swordfight).

Question 13

Negligence: Breach

To what extent does the claimant need to prove that the defendant has breached their duty of care?

Answer 13

On the balance of probability.

Question 14

Negligence: Breach

What two key factors are involved when considering the magnitude of risk?

Answer 14

1) How likely was it that the defendants actions could cause an injury?
2) If an injury was caused how serious was it likely to be? ( Paris v Stepney Borough Council 1951 - Goggles/Blinding of man)

Question 15

Negligence: Breach

What part does cost and practicability of precautions play when considering if there is a breach of duty of care?

Answer 15

If the risk of injury could have been substantially reduced at a low cost to the defendant then if they have failed to take the necessary precautions they will have breach their duty of care ( Latimer v AEC). Not having money to pay for improvements is not a defence - impecuniosity is not a defence.

Question 16

Negligence: Breach

If a defendants behaviour has caused harm but is in the public interest they are less likely to be held liable in negligence True or False?

Answer 16

True. ( Watt v Herts Council) 1954.

Question 17

Negligence: Breach

How does the maxim res ipsa loquitur assist a claimant?

Answer 17

When there are no witnesses or expert evidence a court can draw an inference from the circumstances. Res ipsa loquitur = The thing speaks for itself. ( Scott v London St.Katherine Docks)

Question 18

Negligence: Breach

What are the three conditions for the maxim res ipsa loquitur to apply?

Answer 18

1) the thing causing the damage must be under control of the defendant
2) the accident must be something tat would not normally happen without negligence
3) the cause of the accident is unknown to the claimant

When this maxim applies the defendant has to prove there was no negligence.

Question 19

Negligence: Breach

What happens if a defendant does not know/cannot forsee a risk because it has never been apparent before?

Answer 19

The defendant’s activities is judged by their state of current knowledge

(Roe v MOH 1954) - anaesthetic/seepage.

Question 20

Negligence: Breach

What happens if a defendant denies breach of duty on the basis they were following common practice?

Answer 20

Defendants can escape liability if they can show they complied with accepted practice in their trade/profession. ( Bolam). BUT this has been proven otherwise (Zeebrugge disaster) 1987

Question 21

Negligence: Breach

If a defendant has a criminal conviction how does this help the claimant?

Answer 21

Under S11 of the Civil Evidence Act 1968 a defendant who has been convicted of a criminal offence is presumed, in any subsequent proceedings to have committed that offence. This can help a claimant show a court that the defendant is guilty of careless conduct. The criminal conviction needs to be relevant to the claim in negligence.

Question 22

Negligence: Causation

What three questions does the concept of causation encapsulate?

Answer 22

1) Factual causation
2) Intervening acts
3) Remoteness of damage

Question 23

Negligence: Causation

How is causation factually satisfied?

Answer 23

The ‘But For’ test is applied - but for the defendants actions would the damage to the claimant have still occurred? If ‘no’ then causation is satisfied. ( Barnett v Chelsea Hosp Mgmt Committee)

Question 24

if there are multiple causes then how does a claimant prove causation?

Answer 24

Even with multiple causes the claimant just needs to show that one cause ‘materially contributed’ to the damage. ( Bonnigton Castings v Wardlaw 1954). This contrasts with Wilsher where the claimant had five possible causes but could not prove that one, or more than one of them, caused the damage on the balance of probabilities

Question 25

What did the case of McGhee v National Coal Board show in respect of material contributions to causation?

Answer 25

That sometimes a defendants breach can materially increase the risk of breach but this is a very narrow exception rarely used.

Question 26

What is the rule if a claimant suffers damage (to property or injury to self) more than once?

Answer 26

The defendant is only liable for making the claimants damage worse ( Performance Cars v Abraham). This opens up questions about divisible injury where the allocation of damages in concerned.

Question 27

Explain 'Divisible Injury' in relation to how a court will allocate damages.

Answer 27

Where the court has evidence which will enable it to divide up the injury it will apportion damages accordingly ( Holtby)

Question 28

What happens where two people have contributed to the same damage (tortfeasors)?

Answer 28

Under ss 1(1) and 2(1) of the Civil Liability(Contribution) Act the court has the power to apportion damage between both tortfeasors. The claimant can sue one, any or all of them.

Question 29

If damages are apportioned between several defendants what is their overall position?

Answer 29

The defendants may seek a contribution from the other defendants. Note it does not affect the claimants position.

Question 30

Instinctive interventions do not break the chain of causation. True or false?

Answer 30

True. ( Scott v Shepherd 1773). A firework tossed around instinctively between several people before it exploded in the claimants face.

Question 31

What is the general rule regarding the negligent intervention of a third party?

Answer 31

It is a question of foreseeability. The negligent action of a third party will not break the chain of causation which the defendant ought to have forseen as a likely consequence of his negligence. (Knightley v Johns 1982 - Constable killed by third party in blocked tunnel which defendant caused by negligent driving)

Question 32

Where the intervening conduct of a third party is reckless or intentional what is the usual outcome ?

Answer 32

It is more likely that the conduct of a third party that is reckless or intentional will break the chain of causation. Lamb v Camden Council 1981 - squatters causing damage - defendants only liable for the damage they caused.

Question 33

What is the courts view where a defendants actions has recklessly contributed to further damage

Answer 33

It is unlikely to break the chain of causation. Consider where a defendant negligently causes injury to a claimant who then goes on to be injured further by medical practitioners. The defendant is viewed by the courts as someone who should forsee the likelihood of that happening ( Stansbie v Troman - decorator and thief)

Question 34

How does the claimant break the chain of causation themselves?

Answer 34

Where a claimant does something unreasonable which causes themselves further injury. ( McKew v Holland 1969)

Question 35

What is the Wagon Mound test for remoteness of damage?

Answer 35

If a reasonable person could not have forseen the damage it cannot be recovered.

Question 36

A proviso to the Wagon Mound test is something known as The Similar In Type Rule. How does this operate?

Answer 36

If claimant suffers an injury of a type which was forseeable i.e -burns, if they were burned in a different way that was not forseeable it makes no difference. (Hughes v Lord Advocate (1963)

Question 37

A proviso to the Wagon Mound test is something known as The Egg Shell Skull Rule. How does this operate?

Answer 37

It means you take your victim as you find them. I.e - you injure a professional footballer who has to retire from the game, a court will rule you have to pay for his lost earnings even though they may run into millions.

Question 38

Pure Economic Loss: A defendant is never liable for their breach of duty because the proximity to the claimant is too remote. True or False?

Answer 38

True. This is otherwise known as a limited duty situation; a defendant does not owe a duty of care to a claimant to not cause pure economic loss.

Question 39

Pure Economic Loss: Name four types of pure economic loss that is not recoverable

Answer 39

1) Acquiring defective property 2) Damage by a third party ( Spartan Wheel) 3) Economic loss unconnected to physical damage to the claimant's person or property.

Question 40

Pure Economic Loss: What are the special rules for what is called 'consequential economic loss'?

Answer 40

There are no special rules. Consequential economic loss is recoverable in the same way as a claim for damages. I.E - if D burns down a shed worth £500 and C has to spend £50 storing goods elsewhere then both losses are recoverable.

Question 41

Pure Economic Loss: What is the key takeaway from the case of of Murphy v Brentwood DC?

Answer 41

That when a claimant has acquired defective property and there is not a sufficiently close relationship there is no duty of care. It would be different if the defective property caused further damage or personal injury.

Question 42

Pure Economic Loss: Economic loss caused where there is no physical damage can be caused by what?

Answer 42

1) Negligent actions 2) negligent statements (Weller v Foot and Mouth) - Actions

Question 42

Pure Economic Loss: Economic loss caused by damage to the property of a third party is not recoverable. True or false?

Answer 42

True. ( Spartan Steel - loss of profits whilst electricity cut off). In Spartan they could only recover for the damaged property it did own, not the future profits; It would have been different if they owned the electricity cable. The lack of proximity between Spartan and the electric company who's cable was damaged by a third party was not sufficiently close enough. Proximity is key.

Question 43

What is the exception to the general rule that there is no duty not to cause pure economic loss, and damages can not be recovered?

Answer 43

Where there is an especially close relationship between claimant and defendant. ( Journalist gives specific financial advice to one reader who called - he has now undertaken a responsibility to the reader). Hedley v Byrne.

Question 44

What are the two elements to a special relationship under Hedley v Byrne?

Answer 44

1) an assumption of responsibility by the defendant 2) reasonable reliance by the claimant

Question 45

The case of Caparo v Dickman 1990 built on Hedley v Byrne laying down four criteria for a defendant to have assumed a responsibility toward a client. What are those criteria?

Answer 45

1) D knew the purpose for which the advice was required 2)D knew the advice would be communicated to the member 3)D knew that C would act on the advice 4) C acted on the advice to their detriment

Question 46

How does the case of White V Jones 1995 signal an extension of the Hedley Byrne principle (assumption of responsibility)?

Answer 46

In that case a solicitor provided services in a negligent way rather than making a negligent statement.

Question 47

Can a claimant rely on a claim in tort even though they have a professional contract with D?

Answer 47

Yes. Henderson v Merrett Syndicates 1994. - It is possible on;y if the duty to take reasonable care care in tort, is consistent with the same duties owed under contract. ( READ THIS ASE)

Question 48

In Hedley V Byrne D was able to escape liability by using a disclaimer. How has this situation been changed to not allow a D to do this?

Answer 48

Firstly by the Unfair Contract Terms Act 1977 (UCTA 1977) and more recently by the Consumer Rights Act 2015 (CRA 2015).

Question 49

What does s2(1) of UCTA 1977 and s65(1) of CRA 2015 not allow a D to do

Answer 49

D cannot exclude liability for death or personal injury resulting from negligence.

Question 50

Can D exclude their liability for any other type of loss or damage?

Answer 50

Only if the exclusion satisfies the reasonableness test under s2(2) of UCTA 1977 or fairness under s62 of CRA 2015.

Question 51

Question: What is the threshold requirement for 'harm' in a pure psychiatric injury claim?

Answer 51

Answer: It must be a recognised psychiatric illness (e.g., PTSD, clinical depression).

Question 52

Question: How is a Primary Victim defined?

Answer 52

Answer: Someone who was in the 'zone of danger' (actual or reasonably feared physical danger).

Question 53

Question: Does psychiatric harm to a Primary Victim need to be foreseeable?

Answer 53

Answer: No. If physical injury was foreseeable, the D is liable for psychiatric harm (Page v Smith).

Question 54

Question: What are the three Alcock control mechanisms for Secondary Victims?

Answer 54

Answer: 1. Foreseeability of psychiatric harm, 2. Proximity (Relationship and Time/Space), 3. Sudden shock.

Question 55

Question: What is the 'Relationship' requirement for a Secondary Victim?

Answer 55

Answer: A close tie of love and affection (presumed for spouses/parents/children).

Question 56

Question: What is the 'Proximity' requirement for a Secondary Victim?

Answer 56

Answer: Presence at the scene or its immediate aftermath.

Question 57

Question: How must a Secondary Victim perceive the event?

Answer 57

Answer: Through their own unaided senses (not via live TV or third party).

Question 58

Question: How are Rescuers treated after White v CC South Yorkshire?

Answer 58

Answer: As Secondary Victims, unless they were also in the zone of physical danger.

Question 59

Question: What are the four facets of an employer's non-delegable duty of care (Wilsons & Clyde Coal v English)?

Answer 59

Answer: 1. Safe place of work, 2. Safe system of work, 3. Safe plant/equipment, 4. Competent staff.

Question 60

Question: Is an employer's duty to an employee delegable?

Answer 60

Answer: No. The duty is personal and non-delegable

Question 61

Question: What is the standard of care for an employer?

Answer 61

Answer: That of a reasonable and prudent employer. The duty is not absolute

Question 62

Question: What must be proven for 'Competent Staff' liability?

Answer 62

Answer: That the employer knew or should have known of the employee's risk-prone behavior (e.g., practical jokes) and failed to act.

Question 63

Question: Under the Employers' Liability (Defective Equipment) Act 1969, who is liable for a defect caused by a third-party manufacturer?

Answer 63

Answer: The employer is deemed negligent and liable, even if the fault is entirely the manufacturer's.

Question 64

Question: What is the 'Safe System of Work' requirement?

Answer 64

Answer: It includes training, instructions, and supervision. The employer must not only provide a safe system but also take steps to ensure it is used.

Question 65

Question: Does an employer's duty apply when an employee is working at a third-party premises?

Answer 65

Answer: Yes, the duty remains, though the standard of 'reasonable care' may be lower depending on the circumstances.

Question 66

Question: For Vicarious Liability, what is the two-stage test?

Answer 66

Answer: 1. A relationship of employment (or akin to employment), 2. The tort was committed in the 'course of employment'.

Question 67

Question: What are the three requirements for the defence of Volenti non fit injuria (consent)?

Answer 67

Answer: 1. Claimant had capacity to give consent 2. Claimant had full knowledge of the nature and extent of the risk

Question 68

Question: Is Volenti a partial or complete defence?

Answer 68

Answer: Complete defence. If successful the defendant has no liability.

Question 69

Question: Can a passenger in a car be subject to the Volenti defence for the driver's negligence?

Answer 69

Answer: No per s149 Road Traffic Act 1988

Question 70

Question: What is the two-stage test for Contributory Negligence (s1 Law Reform (Contributory Negligence) Act 1945)?

Answer 70

Answer: 1. Did the claimant fail to take reasonable care for their own safety? 2. Did that failure contribute to the damage suffered?

Question 71

Question: Is Contributory Negligence a partial or complete defence?;

Answer 71

Answer: Partial defence. It results in a percentage reduction of damages based on what is 'just and equitable'.

Question 72

Question: What is the 'Ex Turpi Causa' (Illegality) defence?;

Answer 72

Answer: A complete defence where the claimant cannot pursue a cause of action that arises from their own illegal act (Patel v Mirza).

Question 73

Question: Does the defence of Necessity require the defendant to show they acted to prevent a greater evil?; Answer: Yes

Answer 73

Answer: Yes the defendant must prove they acted in an emergency to prevent a greater harm to the public

Question 74

Question: What is the standard for 'sudden emergency' in contributory negligence?

Answer 74

Answer: The 'agony of the moment' rule — if a claimant is put in a dangerous situation by the defendant their response is judged less strictly.

Question 75

Question: What are the ttwo requirements for the defence of Volenti non fit injuria (consent)?

Answer 75

Answer: 1. Claimant had capacity to give consent 2. Claimant had full knowledge of the nature and extent of the risk

Question 76

Question: Is Volenti a partial or complete defence?

Answer 76

Answer: Complete defence. If successful the defendant has no liability.

Question 77

Question: Can a passenger in a car be subject to the Volenti defence for the driver's negligence?

Answer 77

Answer: No per s149 Road Traffic Act 1988

Question 78

Question: What is the two-stage test for Contributory Negligence (s1 Law Reform (Contributory Negligence) Act 1945)?

Answer 78

Answer: 1. Did the claimant fail to take reasonable care for their own safety? 2. Did that failure contribute to the damage suffered?

Question 79

Question: Is Contributory Negligence a partial or complete defence?

Answer 79

Answer: Partial defence. It results in a percentage reduction of damages based on what is 'just and equitable'.

Question 80

Question: What is the 'Ex Turpi Causa' (Illegality) defence?

Answer 80

Answer: A complete defence where the claimant cannot pursue a cause of action that arises from their own illegal act (Patel v Mirza).

Question 81

Question: Does the defence of Necessity require the defendant to show they acted to prevent a greater evil?

Answer 81

Answer: Yes the defendant must prove they acted in an emergency to prevent a greater harm to the public

Question 82

Question: What is the standard for 'sudden emergency' in contributory negligence?

Answer 82

Answer: The 'agony of the moment' rule — if a claimant is put in a dangerous situation by the defendant their response is judged less strictly.

Question 83

What is the primary aim of compensatory damages in Tort?

Answer 83

To put the claimant in the position they would have been in had the tort not occurred (Restitutio in integrum).

Question 84

What are "Special Damages"?

Answer 84

Quantifiable financial losses incurred up to the date of trial/settlement (e.g., lost earnings, medical bills, damaged property).

Question 85

What are "General Damages"?

Answer 85

Non-quantifiable losses for the future or non-monetary harm: 1. PSLA (Pain, Suffering, and Loss of Amenity) 2. Future financial loss (Future earnings/care).

Question 86

How is 'Pain and Suffering' measured?

Answer 86

Subjective. The claimant must be conscious to claim for pain/suffering. If in a persistent vegetative state, they can only claim for Loss of Amenity.

Question 87

What is 'Loss of Amenity'?

Answer 87

Objective. Compensation for the loss of ability to enjoy life or hobbies (e.g., can no longer play sports).

Question 88

What is the 'Multiplier/Multiplicand' method?

Answer 88

The formula for future losses: Multiplicand (Annual loss) × Multiplier (Period of loss, adjusted by the Discount Rate).

Question 89

What is the 'Discount Rate'?

Answer 89

An adjustment made to the Multiplier to account for the fact that a claimant receives a lump sum now and can invest it. Because lump sums can be invested to earn interest, the award is "discounted" so the claimant doesn't end up over-compensated.

Question 90

What is a 'Smith v Manchester' award?

Answer 90

Damages for the loss of "earning capacity"—awarded when a claimant is still working but their injury makes them less competitive in the job market.

Question 91

Name three 'deductions' from a PI award.

Answer 91

1. State benefits (CRU). 2. Contractual sick pay. 3. Private insurance/charity (These are usually not deducted - "The Collateral Source Rule").

Question 92

Under the LR(MP)A 1934, what happens to a PI claim if the claimant dies?

Answer 92

The cause of action survives for the benefit of the estate. The estate can claim for losses up to the date of death.

Question 93

Who can claim under the Fatal Accidents Act 1976?

Answer 93

Dependants (Spouse, civil partner, children, etc.) who had a reasonable expectation of financial support from the deceased.

Question 94

What are the three heads of claim under the FAA 1976?

Answer 94

1. Dependency claim (loss of money/services). 2. Bereavement Award. 3. Funeral expenses (if paid by the dependants).

Question 95

Who is entitled to a Statutory Bereavement Award?

Answer 95

Fixed sum (£15,120) for: 1. Spouse/Civil Partner. 2. Parents (if child is a minor). 3. Cohabitant of 2+ years.

Question 96

What is the 'Lost Years' deduction?

Answer 96

When calculating future loss for a living claimant whose life expectancy is shortened, the court deducts what they would have spent on themselves (usually 25-33%).

Question 97

Damages: non pecuniary losses In relation to being awarded damages for pain and suffering, what test emerged from the common law case of Wise v Kaye 1962?

Answer 97

It is a subjective test that stipulates a claimant must be aware of their injuries to be able to make a claim. Therefore if they are/were unconscious they would have to claim for 'loss of amenity' - which is an objective test that was established in West v Shephard 1964.

Question 98

Under the Social Security (recovery of benefits) Act 1997, what three heads of damage are affected?

Answer 98

Compensation for: 1) Lost earnings 2) Cost of care 3) Loss of mobility NB - no benefits are deductible from a claim of pain and suffering and loss of amenity (general damages )

Question 99

Under the Fatal Accidents Act 1976 any monies a dependant is due to inherit is disregarded and does not affect their claim. True or False?

Answer 99

True.

Question 100

While the Bereavement Award is strictly limited to very close family, the list of people available for a Loss of Dependency claim is much broader. True or False?

Answer 100

True. The Full statutory list includes: 1)Spouses and civil partners 2)Cohabiting partners 3) Children/step children/g'children 4)Parents and ancestors 5) Siblings and their issue 6)Aunts/Uncles and their issue

Question 101

What is the definition of Vicarious Liability?

Answer 101

A form of strict secondary liability where one person (Employer) is held liable for the torts committed by another (Employee).

Question 102

What is the 3-stage test for Vicarious Liability?

Answer 102

1. A Tort must have been committed. 2. There must be a relationship between the D and the tortfeasor (Employment/Akin to employment). 3. The tort was committed in the course of that relationship.

Question 103

What is the 'Control Test'?

Answer 103

An old test: Does the employer tell the worker what to do and how to do it? (Now less significant than the Multiple Factor Test).

Question 104

What is the 'Multiple Factor' / Economic Reality Test?

Answer 104

Established in Ready Mixed Concrete. Factors: 1. Remuneration (salary). 2. Control. 3. Provisions consistent with contract of service (e.g., tools, tax, uniform).

Question 105

Can a relationship 'akin to employment' trigger liability?

Answer 105

Yes. In Various Claimants v Catholic Child Welfare Society, the court held that a relationship can be akin to employment if it is "sufficiently close" to make it fair/just.

Question 106

Are employers usually liable for Independent Contractors?

Answer 106

No. Independent contractors are "on a frolic of their own" or in business on their own account (Barclays Bank v Cox).

Question 107

What is the 'Close Connection' Test?

Answer 107

Used to determine if a tort was in the 'Course of Employment'. Is the tort so closely connected with the employment that it is fair and just to hold the employer liable? (Lister v Hesley Hall).

Question 108

Is an employer liable for an 'Express Prohibition'?

Answer 108

It depends. If the employee does the job in a forbidden way (Rose v Plenty), the employer is liable. If the employee does something outside the job scope, they are not.

Question 109

What is a 'Frolic of One's Own'?

Answer 109

When an employee does something entirely outside the scope of their employment for their own purposes (Joel v Morison).

Question 110

What is 'Dual Vicarious Liability'?

Answer 110

Where more than one employer can be held liable for the same tort committed by one employee (Viasystems v TNET).

Question 111

What is the 'Salmond Test' (The old rule)?

Answer 111

A tort is in the course of employment if it is: 1. A wrongful act authorized by the employer OR 2. An unauthorized mode of doing an authorized act.

Question 112

Is an employer liable for Intentional Torts (e.g. Assault)?

Answer 112

Yes, if there is a 'Close Connection' between the job and the assault (e.g., a nightclub bouncer attacking a patron in Mohamud v Morrison Supermarkets).

Question 113

Who is an 'Occupier'?

Answer 113

Anyone with sufficient degree of control over the premises (Wheat v E Lacon). There can be more than one occupier.

Question 114

What is the 'Common Duty of Care' (OLA 1957)?

Answer 114

Duty to take such care as is reasonable to see that the visitor is reasonably safe for the purpose of their visit.

Question 115

How does the duty differ for children (s 2(3)(a))?

Answer 115

Occupier must be prepared for children to be less careful than adults. Premises must be free from 'allurements' (Jolley v Sutton).

Question 116

How does the duty differ for skilled visitors (s 2(3)(b))?

Answer 116

Occupier can expect a professional to guard against risks inherent to their trade (Roles v Nathan).

Question 117

When is an occupier NOT liable for a contractor's negligence?

Answer 117

s 2(4)(b): 1. Reasonable to hire them. 2. Checked competence. 3. Checked work (if reasonable to do so).

Question 118

What is the 3-stage test for duty to trespassers (OLA 1984)?

Answer 118

s 1(3): 1. Occupier aware of danger. 2. Knows trespasser is/may come near. 3. Risk is one they should reasonably offer protection against.

Question 119

Can a warning sign discharge an occupier's duty?

Answer 119

s 2(4)(a): Only if it is sufficient to make the visitor reasonably safe. A sign for a 'hidden' danger must be specific.

Question 120

Is an occupier liable for 'Obvious Risks' to trespassers?

Answer 120

No. There is generally no duty to warn trespassers against obvious risks (e.g., diving into shallow water - Ratcliff v McConnell).

Question 121

What is the rule on 'Exclusion Clauses' for death/PI?

Answer 121

Under CRA 2015 (for consumers) and UCTA 1977 (for businesses), an occupier cannot exclude liability for death or personal injury resulting from negligence.

Question 122

What damage can be claimed under OLA 1984?

Answer 122

Personal Injury only. Damage to property is not recoverable by a trespasser under the 1984 Act.

Question 123

What is the nature of liability under the CPA 1987?

Answer 123

Strict Liability. The claimant does not need to prove the defendant was negligent, only that the product was defective and caused damage.

Question 124

Who can be sued under the CPA 1987?

Answer 124

1. The Producer (Manufacturer). 2. The Own-Brander. 3. The Importer (into the UK). 4. The Supplier (if they fail to identify the producer).

Question 125

What is the definition of a 'Defect' (s 3)?

Answer 125

When the safety of the product is not such as persons generally are entitled to expect.

Question 126

What types of damage are recoverable?

Answer 126

1. Death. 2. Personal Injury. 3. Private Property damage (over £275).

Question 127

What is the 'Business Property' exclusion?

Answer 127

You cannot claim for damage to property that is used for business purposes; the CPA 1987 only covers consumer property.

Question 128

What is the 'Development Risks' Defence?

Answer 128

The state of scientific knowledge at the time was not such that a producer of products of that type might be expected to have discovered the defect.

Question 129

What is the Limitation Period for CPA 1987?

Answer 129

3 years from the date of injury/knowledge.

Question 130

What is the 'Longstop' provision?

Answer 130

An absolute bar to claims 10 years after the product was put into circulation, even if the injury hasn't happened yet.

Question 131

Can you claim for damage to the defective product itself?

Answer 131

No. You cannot claim for the cost of replacing the faulty item, only for the damage it causes to other property or people.

Question 132

Is an intermediate supplier liable for a defect?

Answer 132

Generally no, unless they fail to identify the producer/importer within a reasonable time after being asked.

Question 133

What is Private Nuisance?

Answer 133

An unlawful (unreasonable) interference with a person’s use or enjoyment of land, or some right over or in connection with it.

Question 134

Who has standing to sue in Private Nuisance?

Answer 134

Only someone with a proprietary interest in the land (e.g., owner or tenant). Licensees or guests cannot sue (Hunter v Canary Wharf).

Question 135

What is the 'Locality' factor?

Answer 135

"What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey." Character of the neighborhood matters (Sturges v Bridgman).

Question 136

Does locality matter for Physical Damage?

Answer 136

No. If the nuisance causes physical damage to property, the locality is irrelevant; it is always an unreasonable interference (St Helens Smelting Co v Tipping).

Question 137

What is the 'Prescription' defence?

Answer 137

If the nuisance has continued for 20 years against the claimant, it becomes a legal right. (Note: Not just 20 years in existence, but 20 years as a nuisance).

Question 138

What is Public Nuisance?

Answer 138

An act or omission which materially affects the reasonable comfort and convenience of a class of Her Majesty's subjects.

Question 139

Who can sue for Public Nuisance?

Answer 139

1. The Attorney General. 2. An individual who has suffered 'Special Damage' over and above the rest of the class.

Question 140

What are the 4 elements of Rylands v Fletcher?

Answer 140

1. Bringing/keeping something on land. 2. Likely to do mischief if it escapes. 3. Which constitutes a Non-natural use of land. 4. It does escape and causes damage.

Question 141

What is the 'Transco' test for Non-natural use?

Answer 141

The use must be extraordinary and unusual in the context of the time and place. It is not just "not common."

Question 142

Is 'Coming to the Nuisance' a defence?

Answer 142

No. It is no defence to say the claimant moved next door to a pre-existing nuisance (Miller v Jackson).

Question 143

How does the OLA 1984 differ in its liability areas to the overall tort of negligence?

Answer 143

The Occupiers’ Liability Act (OLA) 1984 is a specialized statutory branch of tort law that deals specifically with the duty owed to trespassers (unlawful visitors). While it shares the same DNA as the general tort of negligence, it differs significantly in its application, the threshold for liability, and the "nature" of the duty.

Question 144

Product liability: Where a supplier has gone out of business or the claimant was not the buyer of a product the only causes of action that are open to the claimant are in tort. True or false?

Answer 144

True. Where a claimant takes on a manufacturer because the supplier went out of business, for example, the 'narrow rule' of Donaghue and Stevenson applies - 1) D is a manufacturer; 2) the item causing damage is a product; 3) the claimant is a consumer; 4) the product went from D to C with no possibility of inspection.

Question 145

Who can be a manufacturer of a product?

Answer 145

Any person who works in some way on a product before it reaches a consumer. This can include repairers, installers of products and on rare occasions suppliers of products (Andrews v Hopkinson)

Question 146

Product liability: What did the case of Andrews v Hopkinson 1957 establish?

Answer 146

This is the gold standard for understanding when a distributor/supplier can still be held liable in Tort. 1) Nature of Defect - defect was something that could be discovered with a simple check 2) Duty to inspect - seller must check it is in good order if it is reasonable to do so.

Question 147

Product liability: To show a duty of care under the 'narrow rule' what must a claimant establish?

Answer 147

1) D is a 'manufacturer' 2) the item causing damage is a product 3) C is a consuumer 4) the product reached the consumer in he form in which it left the manufacturer with no reasonable possibility of intermediate examination.

Question 148

Product liability: The consumer is the person who bought the product? Is this accurate?

Answer 148

No. A consumer is anyone whom D should have in mind as likely to be injured by D's negligence (neighbours)

Question 149

Product Liability: With regard to causation explain the different claims that can be made under the CPA 1987 and in tort?

Answer 149

A claim in tort(negligence) relates to the defendants breach of duty. A claim under CPA 1987 must show that the defective product caused the damage.