AQA A-Level Tort Law

Neighbour Principle

Donoghue v Stevenson - duty owed to someone closely affected by what you do or don't do

Modern approach

Caparo 3 part test:

1) Reasonably foreseeable D's act/ omission will cause damage? (Kent)

2) Proximity of time/ space/ relationship (Bourhill v Young)

3) Fair, just and reasonable to impose a duty of care

Economic loss

Hedley Byrne added the special relationship to Caparo:

1) Special skill or expertise (Howard Marine)

2) Voluntarily assumed responsibility of giving advice

3) Knew would rely on advice (Caparo)

4) Reasonable reliance on the advice (Caparo)

5) Relied on advice to detriment (Caparo)

Psychiatric injury

- Must be a recognised medical condition with long term effects (Reilly)

- Primary Victim; directly involved (Chadwick)

- Secondary Victim; witnesses event, not endangered

Alcock Criteria (Secondary Victim)

1) Close tie of love + affection to Primary V

2) Physical proximity in time + space (McLoughlin)

3) Perceived with own unaided senses, no 3rd party information (Sion)

Blyth v birmingham waterworks

D is judged against the reasonably competent man

Bolam

D is judged against the reasonably competent professional

Nettleship v Weston

Inexperience is not take into account

Mullins v Richards

D is judged against a reasonable child of D's own age

Magnitude of risk (Bolton v Stone)

Small risk, no breach

Precautions (Latimer)

No breach if D takes all reasonable precautions to prevent a breach

Known characteristics of C (Paris v Stepney)

D is expected to take greater care

Social value (Watts)

No breach where the damage results from preventing greater harm

Factual Causation (Barnett)

- D's conduct must cause the damage

- 'But for' test

Material contribution (Wilsher)

If there are multiple factors then D's actions must make a material contribution to the damage

Chain of causation broken by

1) Nature (Carslogie)

2) 3rd party (Knightley)

3) Claimant (Mckew)

Wagon Mound

If damage is not reasonably foreseeable it is too remote

Thin skull rule (Smith v Leech Brain)

D takes C as he finds him

Occupiers Liability Act 1957

An occupier owes a duty to visitors

Occupier (OLA 1957)

A person in control of the property/ premises

Premises (OLA 1957)

Includes houses, land, buildings etc

Visitors (OLA 1957)

Those on the premises. Duty only applies if visitor is carrying out activities that are authorised within the terms of the visit

Children (OLA 1957)

Occupier's should guard against any 'allurements' (Glasgow corporation v Taylor)

Liability to tradesmen (OLA 1957)

Occupier is not liable where tradesmen fail to guard against any risks which they should have guarded against

Liability to independent contractors (OLA 1957)

s2(4) requirements:

a) Must be reasonable to have entrusted the work (Haseldine)

b) Must be competent. Demonstrate expertise

c) Occupier must check the work if possible. The more complex the work and less expert the occupier, less reasonable to impose (Woodward)

Is visitor reasonably safe (OLA 1957)

Breach and risk factors

Avoiding the duty (OLA 1957)

Warning that keeps the visitor reasonably safe

Defences (OLA 1957)

Contributory negligence + volenti

Occupiers Liability Act 1984

- Provides a limited duty of care to trespassers (Addie v Dumbreck)

- Only applies to personal injury or death

Scope of duty (OLA 1984)

s1(3) occupier owes a duty if:

a) He is aware of the danger

b) Knows or has reasonable grounds to believe trespasser is in the vicinity of the danger

c) Risk is one which he may be reasonably expected to offer the trespasser some protection

Standard expected (OLA 1984)

What the occupier is judged against. Breach, reasonable man

Avoid Liability if warning (OLA 1984)

Warning must be in clear and precise terms

Volenti (OLA 1984)

- Voluntary risk by the claimant

- Complete defence

Private Nuisance

Definition from Winfield: "unlawful interference with a persons use or enjoyment of land"

Claimant must show that (private nuisance)

1) They have a right to bring an action + the person they are suing is party to the action

2) Indirect interference - physical damage or loss of amenity

3) Unlawful interference

Locality (private nuisance)

- "What would be a nuisance in Belgrave Square would not be so in Bermondsey"

- Wider range of activities permitted in industrial areas

- Locality is irrelevant if there is physical damage

Duration (private nuisance)

- More often something happens, more likely to be a nuisance

- Single incident can amount (Crown River Cruises)

Degree (private nuisance)

- More serious, more likely to be a nuisance

Sensitivity (private nuisance)

- If C is using his property for an extra-sensitive use, he is not entitled to a claim and therefore he cannot raise liabilities (McKinnon)

Social utility (private nuisance)

- The usefulness to society of D's conduct has a bearing on whether C should have to put up with it

Motive (private nuisance)

- If D does something with no purpose other to annoy C

- He can make something unlawful which may not have been otherwise (Christie v Davey)

Defences (private nuisance)

- Statutory authority

- Prescription (Sturges v Bridgman)

- Planning permission

- Volenti

Rylands v Fletcher

- D is liable if he: "accumulates a dangerous thing for a non-natural use, the thing escapes and causes reasonably foreseeable damage

- C must have a legal interest in the land affected by the escape (Hunter v Canary wharf)

Accumulation (Rylands v Fletcher)

- D must voluntarily bring onto their land an accumulation of the substance which escaped

- Must be artificial, D is not liable if there is a natural accumulation (Giles v Walker)

Dangerous thing (Rylands v Fletcher)

Transco: something that poses an 'exceptional risk' if it escapes

Non natural use (Rylands v Fletcher)

Transco: a use which is 'extraordinary and unusual'

Escape (Rylands v Fletcher)

Dangerous thing must move from the land which D controls to the land which he does not (Read v Lyons)

Reasonably foreseeable damage (Rylands v Fletcher)

The damage caused by the escape must be reasonably foreseeable

Defences (Rylands v Fletcher)

- Act of a stranger

- Act of God

- Statutory authority

- Volenti

- Common benefit

- Fault of C

Vicarious liability

Where the law makes one person liable for the tort committed by another

Wrongdoer has committed a tort (vicarious liability)

A person must commit a tort

Wrongdoer concerned has employee status (vicarious liability)

a) Ready Mix Concrete test:

- Employee paid a wage

- Employer in charge of the worker + work done

- The provisions of the contract are consistent

b) The relationship is 'akin to employment' (Cox v MoJ)

Wrongdoer committed the tort during employment (vicarious liability)

Salmond test:

a) Wrongful act authorised by employer

b) Authorised act carried out in an improper way

Defences (vicarious liability)

- Contributory negligence

- Consent

- Employer not liable where employee was on a "frolic of his own" (Morris)

- Employer not liable for crimes of employees

Remedies (vicarious liability)

- Aim is to put C back in their pre-tort position

- C has a duty to mitigate their losses