Studied by 46 people
Tort
a civil wrong. It is concerned with providing a remedy to people who have been harmed through the fault of others. Objective of tort law is to enforce the law by compensating those who suffer damage when the law is broken
Examples of civil actions
negligence, occupier’s liability, nuisance
Civil law
concerned with settling private disputes between individuals, between businesses or between a business and an individual. In civil law the burden of proof is on the claimant and the standard of proof is on the balance of probabilities
Res ipsa loquitur
“the thing speaks for itself”- this is when the burden of proof shifts from the claimant to the defendant because it is difficult for the claimant to know exactly what happened even though it is obvious the defendant has been negligent.
Negligence
Concerned with compensating people who have suffered damage as a result of the carelessness of others
Defined as in Blyth v Birmingham Waterworks (1856) as “failing to do something which the reasonable person would do or doing something which the reasonable person would not do”
where can negligence come from?
an act or an omission
The claimant must prove on the balance of probabilities:
That they were owed a duty of care by the defendant
That the defendant was in breach of duty
That the claimant suffered damage caused by the defendant, which was not too remote
Duty of care
to establish a legal relationship between the parties. 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
Duty of care can be established in two ways
By applying existing precedent or a statutory obligation (the Robinson approach)
Applying the Caparo test when there is no previous precedent
The Robinson approach
Robinson v CC West yorkshire police (2018), the supreme court emphasises that a judge should first look to existing precedent (or a statutory obligation) when deciding whether a duty of care exists
Examples of well-established categories of duty:
Manufacturer and consumer
Doctor and patient
Drivers and other road users (including pedestrians)
Employer and employee
Instructor and learner
Teacher and student
Parent and child
CASE EXAMPLE: Donoghue v Stevenson
Caparo test
In Novel situations where there is no previous stature or precedent establishing a duty of care. Judges may refer to the Caparo test for guidance in determining new duty situations
Was the harm reasonably foreseeable?
Was their sufficient proximity?
Is it fair, just and reasonable to impose a duty?
Was the harm reasonably foreseeable?
It must be foreseeable that the D’s act or omission could cause harm to someone. This is an objective test. Asks whether a reasonable person in the defendants position would have foreseen that in some way the act or omission might harm others.
CASE EXAMPLE: Kent v Griffiths (2000)
Was there sufficient proximity?
“closeness” between the claimant and defendant. Can either be in the physical sense (time and space) or it could be that proximity is created through a legal relationship
CASE EXAMPLE: Bourhill v Young (1943)
Is it fair, just and reasonable to impose a duty?
Policy based decisions, in which judges take into account the best interest of society when deciding whether to impose a duty. Judges can control and limit the scope of negligence claims
CASE EXAMPLE: Hill v Chief constable of West Yorkshire Police (1990)
Breach of duty
Once it has been established that the claimant is owed a Duty of care, the next stage for the court is ti determine whether or not that duty has been breached
comparing D’s conduct with the standard of care expected from a reasonable person AND
Considering various risk factors which may raise or lower that standard
The reasonable person test
The test is objective: a defendant will have breached their duty of care if he/she fails to act in a way which a reasonable person would have or would not have (Blyth v Birmingham water 1856)
Reasonable person= average intelligence and self-control, and posses an average skills and experience. They are neither excessively cautious or unusually risk-taking
As the test is is subjective, it generally ignore any particular characteristics of the actual defendant , such as inexperience (Nettleship v Weston 1971)
The only instances where the special characteristics of the defendant will be relevant are: children, amateurs, professionals
Children
Where the standard of care will be that of the reasonable child of the same age as the defendant
KEY CASE: Mullins v Richards (1998)
Amateurs
Amateurs can be judged against other reasonably skilled amateurs doing the same task, provided it is one that a reasonable homeowner might carry out
KEY CASE: Wells v Cooper (1958)
Professionals and experts
Professionals/experts will be judged against competent experts in the same field. There must be a substantial body of professional opinion that would support D’s course of action
KEY CASE: Bolam v Barnet Hospital 1957
In relation to medical experts, doctors must ensure patients are fully informed of all material risks involved in treatment and of reasonable alternatives
KEY CASE: Montgomery v Lanarkshire Health board 2015
Risk factors
In determining whether the defendant has breached his/her duty, risk factors can raise or lower the standard of care expected from a reasonable person
Risk factors:
Probability of harm
Seriousness of harm
Unknown risks
Cost and practicality of taking precautions
Potential benefits (social utility)
Probability of harm
If probability of harm is low= D will not be expected to take as much care to guard against the risk
Probability of harm is high= higher standard of care will be expected
KEY CASES:
Bolton v Stone (1951)
Haley v LEB (1965)
Seriousness of harm
If the potential harm 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
KEY CASE: Paris v Stepney (1951)
Cost and practicality
The court will balance the size of the risk with the cost and effort to the defendant in guarding against it
KEY CASE: Latimer v AEC Ltd (1953)- C suffered injury when he slipped on a wet floor
Social utility
The standard of care may be lower if there is a greater public benefit to the activity e.g. in an emergency
KEY CASE: Day v High performance sports (2003)- C had frozen while climbing an indoor wall and had to be rescued
Unknown risks
If the risk of harm is known, there can be no breach of duty
KEY CASE: Roe v Minister of health (1954)- 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 it did, there was no breach
Damage
The third party of any negligence claim is for the claimant to prove that he/she has suffered damage caused by the D’s breach of duty
Damage in this context means the loss suffered by the claimant
Both factual and remoteness (legal causation) must be proved in order for a negligence claim to succeed
Factual causation
“But for” test: but for D’s actions or omission would the claimant have suffered damage
KEY CASES: Barnett v Chelsea and Kensington hospital (1969)
Chester v Afshar (2004)
Intervening acts
KEY CASE: Knightely v Johns (1982)- D’s negligent driving caused an accident in a tunnel. When the police arrived on scene, the senior officer sent a colleague against the flow of traffic to close the tunnel at the other end. This caused a second accident. The conduct of the senior officer was so unreasonable that it broke the chain of causation- D was not the cause of second accident
Remoteness
The claimant can only claim for types of loss that are reasonably foreseeable result of D’s breach
The type of damage which must be reasonably foreseeable, not the extent of the damage or the way in which it happened
KEY CASE: The Wagon mound (1961)
Thin Skull rule
KEY CASE: Smith v Lee Brain (1962)- Claimant 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 reasonably foreseeable result of D’s negligence and that D had to take C as he found him- making him liable for the death
Defences in negligence
Two main defences which can be raised by a defendant in a negligence claim
A defence may allow a defendant to escape liability even where all the elements of tort are present
Contributory negligence
Defendant alleges that the claimant has partly cause or contributed to the damage
Law reform (contributory negligence) Act 1945 provides that a judge may reduce any damage awarded to a claimant according to the extent to which the claimant contributed to his/her won injuries
It is a partial defence- both D and C are each partly to blame for the injury suffered by C
KEY CASES:
Sayers v Harlow UDC (1958)
Jones v Livox Quarries (1952)
Consent
Based on the idea that if the C had voluntarily agreed to a risk of harm full knowledge of the risk, then he/she cannot complain when they do suffer injury
Consent (volenti) is a complete defence- if successfully pleaded by the D, C will receive no damages
The defence will not succeed where the claimant has no choice but to accept the risk, similarly, where a person and a duty to act and is injured because of D’s negligence
It is necessary to show that:
Claimant knew that the nature and extent of the risk of harm
Voluntarily agreed to it
KEY CASE: Morris V Murray (1991)
Remedies in negligence
The court can award a successful claimant monetary compensation for a personal injury or damage to property
This is known as “damages”
The aim of compensation it to put the claimant in the same position that he/she would have been in had the tort not taken place
TWO TYPES: general and special
Special damags
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”
Pre trial expense
Loss of earrings or expenses up to the date of the trial e.g. medical or travel expenses
Loss of property
If destroyed, this will be the market value. If damaged, this will be the cost of repair (unless repair cost exceed the market value, when the latter is used)
General damages
Post trial loses- these are more complicated to calculate as if it is for the judge to decide how much little to award
Includes both pecuniary loses and non-pecuniary loses, these are losses which are not financial, although the court can only compensate for hem in a financial way
They can be payed as a lump sum or structured settlement
TYPES OF GENERAL DAMAGES:
Future loss
Loss of amenity
Pain and suffering
Specific injuries
Future losses
Future medical care and personal assistance, such as adapting a house, future loss of earning etc
(pecuniary loss)
Pain and suffering
Claimant must be able to appreciate his/her condition i.e. no award for pain if the claimant is unconscious or cannot feel pain
(non-pecuniary loss)
Loss of amenity
Loss of things claimant used to enjoy (e.g. sport). Damages may be increased where a claimant had a particular skill or hobby
(non-pecuniary loss)
Specific injuries
The claimant can claim a set amount for the injury itself, e.g. loss of a leg. These are calculated with reference to guidelines
(non-pecuniary loss)
Lump sums and structured settlements
Damages are usually awarded in a lump sum i.e. a once only award
However, Damages act 1996, allows the parties to agree structured settlements i.e. periodical payments which may be for life or a specific period and the amount can be reassessed at intervals
Mitigation of loss
Claimant is under a duty to keep their loss to a reasonable level
EXAMPLE: The claimant cannot claim for private treatment for the injury if there is suitable treatment available under the NHS. However, if treatment can only be available privately, the cost of treatment can be claimed
DUTY OF CARE EVALUATION
Incremental approach: Robinson approach involves deciding new cases on the basis of similar cases already decided. This is a good thing in that it deters speculative claims and ensures certainty in law
Fair, just and reasonable: 3rd part of the caparo test allows the court to decide, even if harm is foreseeable, whether it is fair, just and reasonable to impose a duty of care
Policy relating to special groups: actions against public bodies such as the police, hospitals etc may fail on the 3rd part of the caparo test because these groups provide a public service, which is good for society.
BREACH OF DUTY EVALUATION
Objective standard of care: D will be liable if their conduct fell below the standard of a reasonable person. This achieves justice because people should be entitled to expect a certain standard of behaviour from everyone
Deterrence: the objective standard sallows the law of negligence to act as a deterrent because it helps to prevent similar negligent behaviour in the future
The professional standard: It is fair that defendants who are professionals are judged to a higher standard than that of another reasonably competent experts in their field
Risk factors: The rules on risk factors help to achieve justice because these can either raise or lower the standard of care. On the other hand, it is fair to D that account is given to the practicality of taking precautions
DAMAGE EVALUATION
Factual causation: “But for” test provides justice because it is aimed at compensating the C for loss which is attributable to the defendants breach
Multiple causes: If their are multiple possible cases, the test would result in C going uncompensated despite being owed a duty of care
Remoteness: The rules on remoteness achieve justice because it would be unfair for D to be responsible for damage which was unforeseeable
Intervening events: The rules on intervening events may be applied inconsistently by judges because they try to avoid/under compensate claimants
GENERAL POINTS FOR THE EVALUATION OF NEGLIGENCE
Cost- providing fault by the claimant may be difficult and costly
Delay- in many cases, the person who caused the accident, or their employer, may be covered by insurance. However, insurance companies need to investigate potential claims which often leads to delay in dealing with the case
Need for lawyers- an injured claimant may need to employ a lawyer who will have to gather evidence to achieve a settlement
Confrontation- need to prove fault, parties will need to confront each other through lawyers or insurance companies
Ideas for reform
Claimant has to prove the fault of the D in order to be awarded compensation. The need to prove fault can result in the following problems:
High costs
Lengthy process
The need to use lawyers
Confrontation
Solutions: No-fault compensation schemes or Out of court methods of dispute resolution
No fault compensation schemes
This pays victims without the need to prove how or why the accident occurred. This could be funded by general taxation or by a levy on motorists or employers
Quicker and less delays as no need to involve insurance companies or lawyers
Cheaper as there is no lawyer costs
Less confrontational
Compensation would be paid to all those injured- not just those who can prove the fault of others
Out-of-court methods of dispute resolution
Compensation Act 2006 encourages ADR to settle disputes and stop claims being brought into the court
Making greater use of ADR would ease the burden on courts
Reduce confrontation between parties
Online dispute resolution could speed up claims process, no need to attend court
Raise the lower limit of personal injury claims to a minimum of £5,000, claims less than this could be dealt out of court
Occupiers liability
This is a branch of negligence which has been developed by a statute. Occupiers owe a duty of prove who come onto their premises. The duty differs according to whether the claimant is a visitor or a trespasser. The danger must arise from the state of the premises.
Who is an occupier?
Occupiers of premises who may be, but does not have to be, the owner of tenant of the premises
The test for deciding whether a person is the occupier is found in case law. The key concept is control.
KEY CASE: Wheat v Laton (1966)
Premises
Premises is broadly defined in S.1 (2) and includes: land, buildings, houses, vehicles, lifts, ladders and bouncy castles
Whether the claimant is a lawful visitor or a trespasser, a duty of care will only cover “dangers due to the state of the premises”
KEY CASE: Geary v Wetherspoon (2011)
Lawful visitor
Someone who has express or implied permission to enter the premises, and those with a contractual or legal right to enter
Occupiers liability Act 1957 applies
Trespasser
Usually a person who has no permission or authority to be on the occupiers premises. A lawful can become a trespasser by exceeding the permission granted to them
Occupiers liability Act 1984 applies
Liability to lawful visitors
A lawful visitor who suffers damage due to the state of the defendants premises may be able to claim for personal injury and property damage
The occupiers liability act states that an occupier of premises owes a common duty of care to all lawful visitors. according to s.(2) this means:
“to take such care as in all the circumstances is reasonable to keep the visitor reasonably safe for the purpose for which he/she is invited to be there”
It is the visitor, rather than the premises which must be reasonably safe
The visitor doe snot have to be completely safe- only reasonably safe, this is an objective test (Laverton v Kiapasha Takeaway 2002)
Visitors can be expected to take reasonable care for their own safety (Rochester Cathedral v Debell 2016)
Child visitors
Section 2 (3)(a) OLA 1957 provides that an occupier must be prepared for children to be less careful than others
A higher standard of care is owed to children because they are an especially vulnerable group. A child is less likely to appreciate risks as an adult would and may even be attracted to danger (Jolley v Sutton LBC 2000)
An occupier is entitled to assume that very young children will be accompanied by someone looking after them, and that may reduce the standard of care accepted by the occupier (Phipps v Rochester corporation 1955)
Professional visitors
An occupier will owe a professional visitor (a tradesperson) coming onto the premises a common duty of care
S.2 (3)(b) provides that: 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 through their trade work
KEY CASE: Roles v Nathan (1963)
Defences
Independent contractors:
Visitor is injured due to a danger created by an independent contractor, the occupier has defence under S.2 (4)(b) OLA 1957, provided that 3 conditions are met:
It was reasonable to hire a contractor
Reasonable precautions were taken to ensure contractor is competent
If the nature of the work allows, reasonable checks were taken place to inspect the work
KEY CASE: Haseldine v Daw (1941) and Woodward v Mayor of Hastings (1945)
Defences
Warning notices:
Section 2 (4)(a) OLA 1957 provides that the occupiers liability is discharged if he/she gives effective warning of the danger. The warning must be sufficient to enable the visitor to be reasonable safe
KEY CASE: Rae v Marrs (1990)
Defences
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. However, the consumer rights Act 2015 prevents businesses from restricting liability for death or personal injury on their premises
Liability to trespassers
Occupiers liability act 1984 applies to trespassers
A trespasser who suffers injury due to the state of D’s premises may be able to claim for personal injury (but not damage to property- S.1 (8) ). Reflects the view that trespassers are descending of less protection
KEY CASE: Siddorn v Patel (2007)
When will a duty arise?
Section 1 (3) OLA 1984 provides that the occupier will only owe a duty of care to trespasser if:
a) he/she is aware of the danger or has reasonable grounds to believe it exists
b) he/she knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger or may come into the vicinity of the danger
c) the risk is one against which, in all circumstances, he or she may reasonable be expected to offer the other some protection
If any of the conditions aren’t satisfied, occupier does not owe the trespasser a duty of care
The standard of care
S.1 (4) 1984: to take such care as in all the circumstances is reasonable to see that the trespassers does not suffer injury on the premises by reason of the danger concerned
Standard of care is objective
Factors to take into account include the nature of the premises, degree of danger, the practicality of taking precautions, including financial recourses and the age of the trespasser
Defences to claim by a trespasser
Warning notices: A warning sign can be effective defence S.1 (5), it would have to make the danger clear (Westwood v Post office 1973)
Contributory negligence: defence can apply to reduce the damages payable to the claimant by such proportion as the judge thinks appropriate to reflect the claimants responsibility for his/her injuries
Consent: defence is allowed if the trespasser appreciates the nature and degree of the risk, more than just its existence. It is a complete defence to the occupier.
Torts connected to land
Tort law provides the possibility of actions if the nuisance or annoyance continues beyond what the law deems acceptable
An action in private nuisance may be brought where a use of land submitting interferes with the ordinary use and enjoyment of neighbouring land
An action in Rhylands may be brought where after a dangerous thing has been stored on land in extraordinary circumstances, it has escaped and caused damage to neighbouring land
Private nuisance
Fearn v Tate Gallery (2023), the supreme court defined the tort of private nuisance as: A use of land which substantially interferes with the ordinary use and enjoyment of neighbouring land, judged by the standards of the ordinary person
Private nuisance concerns neighbours
Always involves the competing interests of neighbours to do as they wish with their own land
Anything which substantially interferes with C enjoyment of rights in land is capable of being a nuisance
D’s activity must be more than an ordinary use of land, so that C cannot be expected to put up with it
How to establish liability in private nuisance
The C must prove on a balance of probabilities:
1) Right to bring a claim: that they have the right to being an action and the person that they are suing is capable of being the defendant
2) Interference: that there is a substantial interference in the form of physical damage or loss of amenity (enjoyment) of land
3) Unlawful: that the interference is sufficiently serious in all the circumstances to be unlawful
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 interference. The claimant will usually be a land owner or tenant, but not a guest or employee (Hunter v Canary Wharf 1997)
Right to bring an action- defendant
Person who has created the nuisance or allowed it to continue (Tetley v Chitty 1996)
A person can be liable for a nuisance that he did not create, if he adopts the activity in question (Sealeigh Denfield v O’callaghan 1940)
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 (Leakey v National Trust 1980)
D does not need to have an interest in the land at the time that the nuisance occurs (Anthony v Coal authority 2005)
Interference
There must be substantial interference in the form of either:
Physical damage: for example damage to plants or crops from fumes (St Helens Smelting v Tipping 1865). In Halsey v ESSO 1961, C successfully claimed against an oil company for acid smuts from the oil depot that damaged his car. Physical damage will be regarded as unlawful
Loss of amenity: (inconvenience) which affects the ordinary comfort of human existence. There is no psychical damage, but C’s ability to use or enjoy his land is affected by D’s activities e.g. excessive nouse preventing sleep. Bone v Steal (1975), damages were awarded for the effect of smells emanating from a pig farm
Key points in interference
The interference must relate to C’s use or enjoyment of land (Hunter v Canary Wharf 1997)
The interference must be indirect e.g. from noise, smell, smoke or fumes. Any direct interference e.g. D coming onto C’s land will be trespass. Fearn v Tate Gallery (2023), the supreme court accepted visual intrusion could amount to nuisance
C cannot claim for personal injuries. These are best dealt with in the law of negligence.
Unlawful interference
Even when 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 interest of neighbours
It must be decided that the acts of complaint were:
1) part of the ordinary use and occupation of land
2) whether they are conveniently done, with proper consideration for the interest of neighbours
Is D making more than ordianry use of land?
What amounts to an ordinary use of land depends on the character or nature (locality) of the area, e.g. whether the area is purely residential, if it is partly residential and partly commercial or industrial, if it is situated in the town or country etc.
KEY CASE: Sturges v Bridgman (1879), Noise and vibrations from industrial equipment in a confectioners was a nuisance in a quiet residential area because the locality was not devoted to manufacture.
Special sensitivity of the claimant is not 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.
KEY CASE: Network Rail v Morris (2004), New railway tracks interfered with sensitive recording equipment used in C’s studio. C could not claim for damage to his business because the interference was extraordinary and unforeseeable.
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.
KEY CASE: Barr v Biffa Waste (2012)
A nuisance can arise from a single act, and this is most likely to be the case where there is physical damage.
KEY CASE: Crown River Cruises v Kimbolton Fireworks
A deliberately harmful or malicious act by D is more likely to be considered unlawful.
KEY CASE: Christie v Davey (1893)
It is no defence to a claim in nuisance to say that D is using their land Reasonably or in a way that is beneficial to the public.
KEY CASE: Miller v Jackson (1977)
Ruling in Fearn v Tate Gallery (2023)
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 does not prevent a finding of an actionable nuisance.
Factors to consider when deciding if an interference is unlawful
location
duration and extent
malice
physical damage always unlawful
C’s special sensitivity is not relevant
Social utility make effect remedy only
Defences to private nuisance
There are two defences to private nuisance
Prescription
Stautory auhtority
Prescription
This is when D has carried out the activity causing the nuisance for at least 20 years and C has been aware of this and has not complained, D has a defence known as a “prescriptive right” to carry out the activity
The defence only applies to something that was an actionable nuisance for 20 years i.e. started when C is affected by the nuisance and is not just an activity that had been carried on
Sturges v Bridgman: established that coming to/moving closer to a nuisance is not a defence. This is also demonstrated in Miller v Jackson (cricket was being played before C’s house was built)
Statutory Authority
An action will fail if the nuisance is created by a public body acting under a statutory authority (Allen v Gulf Oil 1981)
Local authority planning permission does not mean that the activity in question is a nuisance, this is a decision for the court. Planning permission could mean damages are more likely to be awarded (Coventry v Lawrence 2014)
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 (Gillingham BC v Medway 1993)
Deciding if and when planning permission has changed the nature of the locality is to be done on a case-by-case basis (Watson v Croft Promo-sport 2009)
Remedies in private nuisance
Injunction: This is a 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
Damages: Coventry v Lawrence (2014), decided that it was open to D to argue that damages are a more appropriate remedy, especially if planning permission was granted for the activity or their is social utility
Physical damage= damages awarded to land, plants, buildings and goods that have been affected, but no award for psychical injury
Loss of amenity= damages could be awarded to reflect the reduction in the value of the land or loss of business
Punitive damages= extra money is given to C because the court disapproves of D’s behaviour
Abatement: This is the right of the claimant to take reasonable steps to deal with any nuisance himself e.g. chopping off the branches of a tree overhanging a boundary, or unblocking a drain
Rylands v Fletcher (1868)
This is a type of nuisance but it protects an occupier against interference due to an isolated escape of something dangerous from neighbouring land, as opposed to ongoing interference
Tort of strict liability e.g. D is liable for the escape event though their is no fault or negligence on his or her part
Damage to property is compensated, not personal injury
A person who brings onto their land and keeps there a dangerous thing in the course of a non-natural use of the land is strictly liable for any damage caused by its escape
What must a claimant do to establish liability in Rylands v Fletcher?
The claimant must prove on a balance of probabilities:
They have a right to bring a claim
D brought onto their land and kept their
A dangerous thing
In a non-natural use of the land
Which has escaped onto adjoining property
Causing reasonably foreseeable damage
Parties
Claimant: The Claimant must have a legal interest in land to pursue a claim – as in the case of nuisance. This means the Claimant will usually be an owner of land or tenant. (Transco v Stockport 2004)
Defendant: This is the person who has control over the land on which the dangerous thing is stored. Again, this is usually either the owner or the occupier of the land. (Rylands v Fletcher 1868)
D brings onto their land
There must be a bringing onto the land of a substance by the Defendant. There can be no liability if the thing in question is already naturally present on the land or if it accumulates naturally, e.g. rainwater.
(Giles v Walker 1890)
Dangerous thing
The thing brought onto D’s land must be dangerous, i.e. likely to do damage if it escapes, e.g. chemicals or explosives. It could also include things not inherently dangerous such as water, provided it poses an exceptional risk if it escapes (Hale v Jennings 1938)
Damage by fire spreading does not 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 (Stannard v Gore 2012)
However, liability may arise if the material stored poses a known fire risk (LMC International v Styrene 2005)
Non-natural use
“Non-natural” use of land is a complex concept and one which will vary depending on time and place. D’s use of the land must be extraordinary and unusual (Transco v Stockport 2004)
Rickards v Lothian (1913), non-natural use was defined as “some special use bringing with it increased danger to others and must not merely be the ordinary use of the land.”
In general, storage of things associated with the domestic use of land will not normally be classified as non-natural. However, storing things in large quantities or unnatural amounts would be considered non-natural use
Courts have been prepared to accept that certain activities may always lead to a potential level of danger, amounting to a non-natural use of land whatever the benefit to the public. Storage of industrial chemicals is a
classic example. (Cambridge Water v Eastern Counties Leather 1994)
Escape
There must be an escape from land that D controls to land that he or she does not control. In Rylands v Fletcher (1868), the water from the reservoir flooded from D’s land into C’s mine.
Damage
The escaping thing must cause reasonably foreseeable damage to adjoining land. (Cambridge Water v Eastern Counties Leather 1994)
C must show damage or destruction of property and can recover the cost of repair or replacement.
Personal injury is not recoverable in Rylands.
Defences to Rylands
Act of a stranger: D is not liable if the escape is caused by the deliberate and unforeseen act of a stranger, i.e. someone over whom D has no control. (Perry V Kendricks 1956)
Act of God: a natural event os enormous that it cannot be either foreseen or guarded against (Nichols v Marsland 1876)
Statutory Authority: D is not liable if the escape occurs during activities authorised by an aCT OF parliament (Green v Chelsea Waterworks 1894)
Consent Volenti: There will be no liability where C has consented to the thing that is accumulated by D (Peters v Prince of Wales Theatre 1943)
Contributory negligence: Where C is partly responsible for the escape of the thing, then damages may be reduced according to the extent of C’s fault.
Vicarious Liability
Vicarious liability is a form of liability by which the Defendant is held liable for a tort committed by a third party.
Main purpose of Vl is to ensure that the victim of a tort is able to receive compensation for the injury or damage suffered
Employer is entitled to record any compensation paid out to the claimant from the employee e.g. by deduction in wages (Civil liability contribution Act 1978)
C must prove on a balance of probabilities: the employee has committed a tort, the worker was an employee of D and the employee committed the tort in the course of employment
Torts in Vicarious Liability
An employer can only be liable if the tort is committed by an employee and the tort must be committed in the course of employment
Negligence
Trespass to the person
Trespass to the property
Employee relationship
The relationship between the Defendant and the tortfeasor must be one which makes it proper for the law to make D pay for the fault of the other. This has traditionally been in the context of an employment relationship.
An employer is only liable for torts committed by employees.
If a person is injured because of the negligence of an independent contractor, they must sue the independent contractor.
Barclays Bank v Various Claimants (2020): supreme court confirmed that vl does not apply to the acts of independent contractors. Test is whether the person is carrying out his own independent business.
Employee vs independent contractor
Employee:
Worker who is employed and has a contract of employment
Contract of service e.g. teacher
If an employee commits a tort, the employer can be sued by the victim
Independent contractor:
Worker who is self employed
Contract for service e.g. plumber
If and independent contractor commits a tort, he.she is the only person who can be sued by the victim
Tests for employee status
Control test
Integration test
Economic reality test
OR IF NONE APPLY: ‘Akin’ to employment test (this is used for non-traditional employment relationships)
Employee status: control test
One feature of an employment relationship is the ability to control the way a job is done. An employee is told what to do and how to do it, whereas an independent contractor is only told what to do.
Mersey Docks & Harbour Board v Coggins and Griffiths (1947)
Employee status: integration test
A worker will be an employee if his work is fully integrated into the business i.e. how important your job actually is to the business (Stevenson, Jordan and Harrison v MacDonald and Evans 1952)
If a person’s work is only accessory to the business, that person is not an employee.
The idea is to look at the reality of the relationship, rather than the terms of a contract.
Economic reality test
Ready Mixed Concrete v Minister of Pensions (1968): The workers were lorry drivers. They wore a uniform; their lorries were painted in company colours; they had to follow instructions and could not 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.
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. All other considerations in the contract are consistent with there being a contract of employment, rather than any other relationship.
Factors relating to the economic reality test
Who bears the chance of profit or loss?
s the worker paid a regular salary or paid per job?
Does the worker pay income tax and national insurance?
Does the contract describe the worker as an employee or not?
Independence in doing the job – can the worker delegate his work to another; take on work from someone else or decide when to do a job?
The ownership of any tools, plant or equipment
Note 
Flashcard (63)