Law Paper 2 Section B (OCR) - Law of Tort

What is a tort?

A civil wrongdoing or a breach of conduct leading to some form of liability that results in the liable party having to provide the innocent party with damages

What did the 1999 Wolf Reforms change the title 'Plaintiff' to?

Claimant

What is negligence?

Failure or omission to use ordinary or reasonable care

What is the structure for a negligence question?

- Duty of Care

- Breach of Duty

- Causation and NAI's

- Remedies

Case law for Duty of Care

Donoghue v Stevenson

Negligence: What does Robinson v CC of West Yorkshire discuss with regards to Duty of Care?

In order for the defendant to be liable, there must be an existing or typical duty of care otherwise CvD applies

What types of duties are owed in existing situations?

Doctor to patient (Roe v Minister of Health

Owner to customer (Donoghue v Stevenson)

Teacher to student (Phelps v Mayor of London Borough Hillington Anderton)

Motorist to pedestrian (Page v Smith)

Negligence: What does Caparo v Dickman discuss with regards to Duty of Care?

In situations there aren't existing duties, a three part test will test the liability of the defendant

Negligence: 1) Caparo v Dickman's Three Part Test: Liability

It's fair and reasonable to impose liability on the defendant under Hill v Chief Constable of West Yorkshire

Negligence: 2) Caparo v Dickman's Three Part Test: Sufficient Proximity

There is a sufficient proximity and nexus between parties involved under Bourhill v Young

Negligence: 3) Caparo v Dickman's Three Part Test: Reasonable Foreseeability

It is reasonably foreseeable that the claimant will suffer injury under Kent v Griffiths

What does Blyth v Birmingham Waterworks say when judging a defendants negligence with regards to breach of duty?

D will be judged by a reasonable person under an objective test

Negligence: What special characteristics may be recognised by the courts regarding expertise?

That D was a professional or an expert (Bolam v Friern HMC) and if so the courts will recognise D's conduct on logical basis (Bolitho v City and Hackney HA)

Negligence: What special characteristics may the courts recognise OTHER than expertise?

Lack of skill in which the defendant is judged by the standard of a competent person (Nettleship v Weston) or

Being a child in which they are judged by the person of similar age (Mullins v Richards)

Negligence: What does Roe v Minister of Health discuss with regards to Breach of Duty?

Whether the defendants risk was reasonably foreseeable

Discharging the duty: What does Bolton v Stone discuss with regards to Breach of Duty?

The size and degree of the defendants risk

Discharging the duty: What does Paris v Stepney discuss with regards to Breach of Duty?

If the claimant has vulnerabilities through special characteristics, a higher standard of care is owed by the defendant

Discharging the duty: What does Latimer v AEC discuss with regards to Breach of Duty?

Whether the defendants risk had any cost and practicality

Negligence: What's the civil case law for the 'But for' test under factual causation?

Barnett v Chelsea and Kensington

Negligence: What is the civil case law for 'Reasonable foresight of damage' under legal causation?

The Wagon Mound

Discharging the duty: What does Watt v Herts CC discuss with regards to Breach of Duty?

The risk has public benefits

What remedies are available for a claimant suffering from somebodies negligence?

General damages: pain, suffering and loss amenity (Judicial College)

Special damages: Pecuniary damages such as medical expenses, loss of earnings - anything from tort to trial

What is the thin skull rule under civil law?

Smith v Leechbrain says the defendant is liable for the full extent of damages even if the claimant is more susceptible to injury

Negligence: When would you pick Caparo v Dickman over Robinson with regards to Duty of Care?

The duty of care is owed in a novel situation (unique and unexpected)

Negligence: When would you pick Robinson over Caparo v Dickman with regards to Duty of Care?

Where there is a precedent that a duty of care should exist

Negligence: What does Alderson B identify as a breach of duty?

Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human officers, would do, or do something which a prudent and reasonable man would not do.

What defences are available for Negligence cases?

Contributory Negligence - Partial defence, when claimant contributes to what they are sueing for so less damages may be awarded (Sayers v Harlow)

Consent - Full defence, claimant agreed to run the risk of damages they are sueing for so no tort has been committed by the defendant (Smith v Baker)

Negligence: What does Bradford v Robinson Rentals mention with regards to legal causation?

If the general type off damage is reasonably foreseeable, its not foreseeable to foresee the precise kind of damage

Negligence: What does Hughes v Lord Advocate mention with regards to legal causation?

If the general type of damage is reasonable foreseeable, it is not foreseeable to foresee the method of damage

What is Rylands v Fletcher about?

A sub rule of private nuisance that deals with damage caused by the escape of dangerous substances from the defendants land to the claimants

What is Blackburn J's definition of Rylands v Fletcher?

A person who for his own purposes, brings onto land and keeps there anything likely to do mischief if it escapes, must do so at his peril and if he does not do so, is prima facie answerable for all damage which is the natural consequence of its escape.

Yes or No: Rylands v Fletcher is a strict liability tort

Yes

What do Read v Lyons say about parties with regards to Rylands v Fletcher?

The claimant has an interest in the land affected by the mischief, and they must show that D was in charge of the mischief-causing land

1) Elements of Rylands v Fletcher: Bringing onto the land

The nuisance cannot naturally be there (Giles v Walker)

2) Elements of Rylands v Fletcher: Non-natural

The use of the nuisance caused must be extraordinary and unusual under Mason v Levy Auto Parts of England with use being considered non natural if stored in bulk under Cambridge Water v Eastern Counties

3) Elements of Rylands v Fletcher: Likelihood

It is likely to cause mischief if the substance escapes (Musgrove v Pandelis)

4) Elements of Rylands v Fletcher: Escape

The nuisance escapes from somewhere the defendant has control over to a place they do not and causes damage (Read v Lyons) if there is no escape, there is no liability (Stannard v Gore)

5) Elements of Rylands v Fletcher: Foreseeability

The damage (not the escape) is reasonably foreseeable - it can not be too remote (unlikely) under Cambridge Water v Eastern Counties Leather

With regards to RvF, in which three places is the case of Cambridge Water v Eastern Counties Leather present?

Reasonable foreseeability and public benefit as well as storage in bulk

1) Defences for Rylands v Fletcher: Act of a stranger

Defendant cannot be liable if the damage was caused by a stranger that they have no control over (Rickards v Lothian)

2) Defences for Rylands v Fletcher: Volenti / Consent

The claimant has consented to the defendant bringing the dangerous thing onto their land as seen in Peters v Price of Wales Theatre

3) Defences for Rylands v Fletcher: Statutory Authority

The defendant has the legal right to carry out the mischief (Green v Chelsea Waterworks)

4) Defences for Rylands v Fletcher: Act of God

The damage was caused by nature or extreme weather conditions not the defendant Nichols v Marsland

5) Defences for Rylands v Fletcher: Default of Claimant

Claimant is responsible and as a result will receive no compensation, if partly responsible then contributory negligence (Contributory Negligence Act 1945) will apply and damages reduced by the % contributed.

What defence can a defendant not rely on in Rylands v Fletcher cases?

The nuisance was for the publics benefit (Cambridge Water v Eastern Counties Leather)

What remedies are available for claimants in Rylands v Fletcher cases?

General Damages for loss of value to land, pain suffering loss of amenity by escape as well as Special Damages for damage to property as well as pecuniary damage from time of tort to trial

What claims cannot be made in Rylands v Fletcher cases?

Ones of Personal Injury

What is vicarious liability?

A tort usually imposed on an employer for the torts of the employee (moving the tort to someone other than the tortfeasor)

Fact or Cap: vicarious liability is strict liability

Fact

Vicarious Liability: Who to sue: Employee and Employer

The employer would be sued for the employees actions

Vicarious Liability: Who to sue: Civil Liability Contributions Act 1978

The employer can recover monies paid from the employee (Lister v Romford Ice)

Vicarious Liability: The Salmond Test 1) Unintentional

The defendant has committed an unintentional tort

Vicarious Liability: The Salmond Test 2) D is an employee

The employer will only be vicariously liable if the defendant was their employee.

Vicarious Liability: The Salmond Test 3) Control Test

The employer controls the defendant in what they do and how they do it - the power to select the servant and control the method of work / dismiss and pay wages (Yewens v Oakes)

What is one exception to the Control Test in Vicarious Liability?

The test is not as applicable to modern times as people are rarely controlled to such extent, an exception is borrowed workers (Hawley v Luminar Leisure Limited)

Vicarious Liability: The Salmond Test 4) Integration Test

The employee is fully integrated into the business with what they do is part of the business - if their work is only an accessory they are not part of the business (Cases of Stevenson and Jordan)

Vicarious Liability: The Salmond Test 5) Multiple Test

There is a mutuality of obligation. Employer is obliged to provide work, Employee is obliged to do the work and Employer obliged to pay for the work done under Ready Mix Concrete v Minister of Pensions

Characteristics of Employees under Vicarious Liability

Their national insurance and tax are deducted, they use the employers equipment, is under the employers control as well as being paid a salary.

Characteristics of an Independent Contractor under Vicarious Liability

Paid an invoice, can turn work down, consider themselves independent and self employed, own their own tools and equipment to carry out work, declare their own tax

Vicarious Liability: The Salmond Test: 7) Course of Employment

The employer is only liable for the employees taught if they carried it out during work

When is an employer likely to be liable for an employees tort regarding course of employment?

The employee carries out the work against the orders of employer (Limpus v London General Omnibus)

Giving unauthorised lifts and the employer benefits from it (Rose v Plenty)

The employee is negligent (Century Insurance v Iceland)

When is an employer unlikely to be liable for an employees court regarding course of employment?

The employee commits their tort on break (Hilton v Thomas Burton Rhodes)

Giving unauthorised lifts and the employer does not benefit from it (Twine v Beans Express)

Employee does something outside their scope of work which is expressly forbidden (Beard v London General Omnibus)

Vicarious Liability: The Lister Approach: 1) Relationships

The courts are asked if the relationship between employer and employee is akin their employment (Lister v Hesley Hall) whether the tort was closely connected to the employment (Mohamud v WM Supermarkets)

Vicarious Liability: The Lister Approach: 2) Proper to impose law

Is the relationship akin to the employment to the extent it is proper for the law to make one pay for the fault of the other (Cox v Ministry of Justice)

Vicarious Liability: The Lister Approach: 3) Connection

Is there a close and sufficient connection between the relationship and the tortfeasors doing (WM Morrisons Supermarkets v Various)

Vicarious Liability: The Lister Approach: 4): Insurance and Compensation

1) The employer is likely to be insured against the damage and has the means to compensate the claimant (Barclays Bank v Various + Christian Brothers)

Vicarious Liability: The Lister Approach: 5) On behalf

The act will have been committed as a result of tort the employee committed on behalf of the employer (Barclays Bank v Various + Christian Brothers)

Vicarious Liability: The Lister Approach: 6) Business Activity

The employee’s activity is likely to be part of the

business activity of the employer (Barclays Bank v Various + Christian Brothers)

Vicarious Liability: The Lister Approach: 7) Risk caused by employment

The employer by employing the employee to carry

out on the activity will have created the risk of the act

being committed by the employee (Barclays Bank v Various + Christian Brothers)

Vicarious Liability: The Lister Approach: 8) Degree of control

The employee will to a greater or a lesser degree

have been under the control of the employer (Barclays Bank v Various + Christian Brothers)

What is the definition of Private Nuisance?

The unlawful interference with a persons ability to use their own land in a responsible way

Private Nuisance: Establishing the Claimant

Claimant must have a legal interest in the land (being the owner or a tenant) under Hunter v Canary Wharf

Private Nuisance: Establishing the Defendant

They must be the obvious creator of nuisance, be an occupier of the land who continues the activity (Sedleigh Denfield v O'Callaghan) or a landlord which has authorised or approved of the tenants activities (Tetley v Chitty)

Private Nuisance: What types of unlawful interferences are there?

Physical damage and loss of amenity (enjoyment)

Private Nuisance: Unlawfulness: Duration

More often means more likely, however single incidents can be nuisance (Spicer v Smee)

Private Nuisance: Unlawfulness: Degree

The more serious the incident the more likely it is nuisance, things like the time of day and physical damage threshold (Murdock & Murdock v Glacier Metal)

Private Nuisance: Unlawfulness: Usefulness

Is what defendant doing useful? If yes can mean damages are reduced (Dennis v Ministry of Defence)

Private Nuisance: Unlawfulness: Motive

If the defendant's incident was caused by malice can be nuisance (Hollywood Silver Fox Farm vs Emmett) carrying out a lawful activity in bad intent makes it unlawful as seen in Christie v Davy

Private Nuisance: Unlawfulness: Sensitivity

Would the activity affect a person of normal tolerance? (McKinnon v Walker), if so C can claim for fact they are more sensitive + is the interference foreseeable? Under Network Rail v Morris

Private Nuisance: Unlawfulness: Locality

Is the activity typical of its location? Residential or rural? (Halsey v Esso) Is it expectable to see this activity here? (St Helens Smelting v Tipping) + irrelevant where nuisance causes damage

What defences are available for Private Nuisance?

Statuatory Authority - a public body acting under legal duty, authorised by parliament Allen v Gulf Oil

Prescription - defendant has been carrying out this activity for the last 20 years starting when claimant starts using land (Coventry v Laurence)

What can a defendant not argue with regards to Private Nuisance?

Claimant could have helped themselves avoid nuisance, defendant was using reasonable care, nuisance contributed to by someone else, (Coventry v Laurence) says defendant cannot say claimant came to nuisance and knew of it upon arrival

What remedies are available for claimants suffering from Private Nuisance?

Damages for property or loss of value of land (Hunter v Canary Wharf)

Damages for Loss of enjoyment in using property (Dennis v Ministry of Defence)

Injunction that prohibits the activity by law (Kennaway v Thompson)

What does the Wagon Mound say with regards to remedies in Private Nuisance?

The damage must be reasonably foreseeable

What is the Occupiers Liability Act 1957?

An act that provides a statutory duty on the occupier towards lawful visitors in respect of the dangers caused by the state of the premises.

What is the difference between Occupier Liability Act's 1957 and 1984?

Whilst 57 protects lawful visitors, 84 protects unlawful trespassers of premises

What is the definition of an occupier?

Someone with sufficient control of premises (Harris v Birkenhead Corp)

Can there be more than one occupier under OLA 57?

Wheat v Lacon recognises there may be multiple occupiers

How does OLA 57 define premises?

Buildings or land or any fixed or moveable structure

What would OLA 57 consider to be lawful visitors?

Invitees, people with statutory authority, people contracted to be on that premises and licensees

Duty of Care in OLA 57: 1) Duty owed

s(2)1: An occupier owes a common duty of care to their lawful visitors

Duty of Care in OLA 57: 2) Reasonable care and safety

s(2)2: To take such care as in all the circumstances of the

case that it's reasonable to see that the visitor will be

reasonably safe in using the premises for the

purposes for they are permitted to be there

Duty of care in OLA 57: 3) Keeping the visitor safe

Laverton v Kiapasha Takeaway Supreme says the duty is to keep the visitor safe, not the premises

What standard would an occupier under the Occupiers Liability Act 1957 be judged by?

Judged by the standards of a reasonable occupier

Breach of duty in OLA 57: Guarding against

The occupier must guard against the foreseeable (Esdale v Dover District Council)

Breach of duty in OLA 57: Degree of care towards children

The occupier must be prepared to recognise children are less careful than adults under s2(3)(a) and Moloney Lambeth v London Borough Council

Breach of duty in OLA 57: Allurement towards children

The occupier should guard against any allurements under Glasgow Corporation v Taylor but the damage must to be foreseeable (Jolley v London Borough of Sutton)

Can the occupier escape liability if parents do not take care of their children on premises under OLA 57?

Phipps v Rochester Corporation says the occupier has the right to expect parents will take appropriate care of young children

Breach of duty in OLA 57: Degree of care towards tradespeople

An occupier may expect a tradesperson to defend themselves against risks in their own specialism under Roles v Nathan and s2(3)(b)

Breach of duty in OLA 57: What criteria needs to be met for dangers caused by a tradespersons faulty work to overrule the liability of the occupier?

s2(4)(b): Reasonable for the occupier to trust the contractor under Haseldine v Daw

- The contractor hired must be competent to carry out the work under Bottomley v Todmorden Cricket Club

- Where possible, occupier should check work carried out under Woodward v Mayor of Hastings