Tort Law (OCR A-levels)

What are the 3 elements of negligence?

Duty of care/Breach of duty/Damaged caused

Which case developed the Neighbour Principle?

Donoghue v Stevenson (1931) - Lord Atkinson: A person owes a DOC by their neighbour to anybody who could reasonably and foreseeably injure somebody by their act or omission.

What to do when identifying whether D owes DOC to C?

First instance we apply existing precedent or statutory authority + have regard to established principles/

What test do we apply in novel events?

Caparo Industries PLC v Diskman (1990) - Was damage or loss foreseeable? - Is there sufficient proximity between the wrongdoer + V? - Is it just, fair and reasonable to impose a DOC - doesn't apply where there is an established DOC

How to judge if something is foreseeable (objective test)

A reasonable person would have foreseen that a failure to take reasonable care would cause injury or damage to C at the time of alleged negligence

What does foreseeability require?

Some loss of damage occurring id D doesn't take reasonable care. Precise form of injury or damage doesn't need to be foreseeable.

Kent v Grittiths (2000)

Held : It was 'reasonably foreseeable' that C would suffer further illness because of D's delays

How to measure proximity?

The court looks at closeness in terms of time, space or relationship

Bourhill v Young (1943)

Held : She was not in sufficient proximity to the accident in either space or time

McLoghlin v O'Brein (1983)

Held : Although not present at accident, it was RF consequence of D's negligence

What can the element of (Just, fair and reasonable) prevent?

'opening the floodgates' where people are inundated with claims from too many C.s Also to protect society as a whole, aka public interest argument

Hill v Chief Constable of West Yorkshire (1988)

Held : There is no duty as it was not considered to be fair, just and reasonable to impose liability on the police.

What are the 3 established duties and cases?

Nettleship v Weston (1971) - Road users/Whitehouse v Jordan (1981) - Doctors and their patients/Walker v Northumberland CC (1995) : employers/employee

How is Breach of Duty measured/ which case?

We look at whether D fell below standard pf care of the 'reasonable man' - Blyth v Birmingham WaterWorks Co (1856)

What is a Reasonable Man/case?

Vaughan v Menlove (1837) Held : D's best judgment is not relevant; their actions are judges objectively by the standard of a reasonable man.

What is the standard of care?

Look at 'reasonable man', the court can consider special characteristics to judge the D's 'reaosnable' standards

Reasonable Child?

Mullin v Richards (1998) Held : D was only half expected to meet the standard of seasonable 15yr old

What case was reasonable professional?

Bolam v Friern Hospital Management Company (1957) Held : Doctors had followed on of accepted causes of action with treatment + actions were that of a competent doctor

As a result of Bolam, what are the 2 questions that must be considered when assessing SOC of reasonable professionals?

- Does D's conduct fall below the standard of originally, competent member of that profession?/Is there a substantial body of option within the profession that would support the course of action taken by the D

Bolitho v Hackney Ha (1997)

Courts decides what SOC applies in each case rather than considering professional opinion as a whole./Boy struggled to breathe + died , doctors' beeper died

Amateurs carrying out a professional task?

Wells v Cooper (1954) Held : An amateur undertaking a task will be compared to a reasonably competent amateur, not a professional.

Risk Factors; when the court is assessing whether there has been a BOD, they will consider whether;

- SOC should be raised or lowered

- The reasonable person would have taken more a fewer risks in the same situation

1.) Does C have any special characteristics? 2.) What was the size of the risk? 3.) Were the risks known about at the time of accident? 4.) Is there a public benefit to taking the risk? 5.) Did they take all the precautions needed?

Montgomery v Lanarkshire Health Board (2015)

- Got C-section/Didn't tell them risks/Held : Doctor owes a patient DOC to make sure they are aware of any risks before medical treatment.

Special Characteristics : C has special characteristics (e.g. disability or health issue), D could be required to take additional steps to protect them

Paris v Stephney Borough Council (1951) Held : D owed C a higher SOC because of potential consequences If they didn't

Size of Risk : the lower the risk, the less chance of breach

Bolton v Stone (1951) Held : Cricket Club had done everything it needed to view the low risk.

Size of Risk : higher the risk, the higher the SOC required

Haley v London Electricity Board (1965) Held : They should've done more to protect public as it was foreseeable that a blind person might walk down the street + should be given appropriate protection

Appropriate Precautions : court will consider the balance of risk involved against the cost + effort of taking adequate precautions to remove risk

Latimer v AEC Ltd (1953) Held : Factory owners had taken reasonable care, steps and reduce risk

Knowledge of Risks : If risk was not known, there won't be a breach

Roe v Minister of Health (1954) Held : Risk of contamination was unknown at the time so there would be no breach

Public Benefit Policy : emergency, grater risks can be taken with lower SOC. Question is whether the benefit outweighs the risk

Watt v Hertfordshire County council (1954) Held : Grater risks could be taken in an emergency; the need to save lives outweighed the need to take precautions

The Sarah Act : Social Action, Responsibility and Heroism Act (2015)

S.2 : Social action - Court must've regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members/S.3 : Responsibility - Court must've regard to whether the person, in carrying out the activity in the course of which the alleged negligent or breach of statuary duty occurred

Damaged Caused

C must show that damage was suffered as a result of BOD/Cannot be too remote from breach.

What must C show to show that damage was suffered as a result of BOD?

Causation

Factual question

Factual : Did the breach of duty cause the injury/damage being claimed for? But for : D's act/omission, the injury/damage wouldn't have occurred

Factual case

Barnett v Chelsea and Kensington Hospital Management Committee (1969) Held : The man would have died regardless of the breach so no factual causation

Legal question + what is considered?

Legal : Was he injury/damage suffered reasonably foreseeable? - Intervening acts - Remoteness of damage - Foreseeable injury - Thin Skull rule

3 elements of Intervening act : can break chain of causation which will show breach didn't cause damage

a.) Act of C b.) Act of nature c.) A third party

Act of C case

McKew v Hollands (1969) Held : C had taken an unreasonable risk that couldn't be foreseen + D couldn't be liable for the ankle injury

Act of nature case

Carslogie Steamship Co v Royal Norwegian Government (1952) Held : Storm was Novus Actus Interveniens and D's can't be held liable for further loss that was sustained as result of a natural event

Act of third party case

Knightley v Johns (1982)

Held : Negligent order to drive down one-way tunnel into opposing traffic wasn't foreseeable. Third party broke chain of causation.

Remoteness of Damage : Damage must not be too remote from BOD, must be foreseeable

Wagon Mound (1961)

Held : Fire damage was too remote as a consequence of the original breach. Damage must be foreseeable

Foreseeable injury : can still apply if injury itself is foreseeable but specific way it happened wasn't

Bradford v Robinson Rentals (1967)

Held : An injury form the cold was foreseeable even if the circumstances were unusual.

Thin skull rule : Must take V as you find them.

Smith v Leech Brain (1962)

Held : A burn was reasonably foreseeable + thin skull rule applied

What is Contributory negligence?

Part defence for negligence + OL

- D will argue that C partly caused the damage + therefore asks D's blame to be reduced meaning damages will be reduced as well

What legislation governs contributory negligence, and what does it state?

Contributory Negligence Act (1945)

- Damages being awarded will be reduced by however much C contributed to the final loss/suffering

How does contributory negligence work?

- Total value of damages will be caluclated

- Judge will decide a % C is responsible for + reduce total by this

- D must show C failed to take appropriate care in situation

- Causation will need to be established to show C's act/omissions helped to cause the damage suffered despite D's original fault

Courts will assess whether C's actions were a natural or probable consequence of D's negligence

Sayers v Harlow (1958)

Held : damages were reduced by 25% because of the careless way she tried to escape

Jayes v IMI Ltd (1985)

- V cleaning machine, taken guard off it, cut his finger

Held : C admitted his fault in taking the guard off so was found to be 100% contributory negligence

Define Volenti non fit injuria

'No injury is done to one who consents to the risk'

Volenti

- Full defence to claim negligence or OL

- D must show C voluntarily accepted a risk of harm or injury

What does D have to show?

1.) C knew + understood precise risk invovled

2.) They did this by free choice

3.) They voluntarily accepted risk (subj test)

Where person has duty to act, and is then injured because of D's negligence, Violent won't be available

Duty means C had no choice but to act. It's common in secure cases

Smith v Baker (1891)

Held : C may have been aware of danger but hadn't consented to lack of care that created this danger

D can argue both contributory negligence + violent. Even if Vol fails, damages could be reduced.

Nettleship v Weston (1971)

Held : Vol didn't apply as C had checked insurance cover which showed him he didn't waive his rights to compensation

- Damages were reduced 50% due to his CN being partly understood to control car

Remedies : Will need to be liable for compensatory damages

- Pecuniary

- Non-pecuniary

- Special damages

- General damages

Compensatory damages : If D is successful they can be awarded compensation for their suffering

- Purpose is to put C in position they would've been in had the tort not been committed through monetary reward

- Is much easier to do with financial suffering but not with physical and/or mental suffering

Pecuniary loss

Is the financial loss that is directly calculated based on actual money lost.

- Special damages + pre-trial losses

Non-pecuniary loss

Is the loss that can't be calculate din relation to specific financial loss e.g. injury

- Judicial college guidelines set ranges of these calculations

- These are form of general damages

What do general damages include?

various non-pecuniary losses + look forward beyond the settlement/trial. They often require medical evidence.

e.g. injury, pain, future financial losses

When awarding compensation for pain + suffering + loss of amenity, this will always be done as a .......

Lump sum, one off.

- Most common arrangement

Structured settlement

When a periodical payment is made instead of lump sum e.g. monthly, annually for either a set period of life time

- Amount can be reassessed too

- Governed by Damages Act (1996)

- Will be arranged by D/D's insurer but must be agreed by both parties; the courts can't enforce this

Mitigation of Loss

Amount of damages being claimed must be reasonable.

- When damages are being claimed for, C must show they are mitigating the loss i.e they're doing what they can to avoid further loss

If C can't do their full time job but can do part-time instead they should.

Marcroft v Scruttons (1954)

- C refused help and got worse

Held : C refused to mitigate his losses and was unable to claim them

What is an Occupier

They are responsible for the safety of visitors and can be legally responsible if a lawful visitor suffers injury

- DOC is to adult visitor but different duties to children + work men

What is the legislation for DOC to those on land with permission? 'Lawful visitors'

Occupiers' Liability Act (1957)

What is the legislation for DOC to trespassers?

Occupiers' Liability Act (1984)

What does S.1(1) in OLA 1957 say?

Liability arises where occupiers create 'dangers due to the state of premises' or where they do or fail to do something to keep their visitors safe.

- Loss, injury or damage arising form anything should be claimed under negligence

What does S.1(2) define/state?

That the rules of common law shall apply

Wheat v Lacon (1966)

Q : Who has the occupational control of the premises?

- V fell down stairs with no light or handrails and died

Held : Manager + owners could be 'occupiers'

S.1(3)(a) Premises

It's not defined by are confirmed as including land, buildings and 'any fixed or moveable structure including any vessel, vehicle or aircraft'

Wheeler v Copas (1981)

Held : Ladder was considered a moveable structure that could amount to a premises

What does S.1 OLA (1957) outline?

Viscitors can be invitees, licensees, contractual permission + those with statutory right to enter

- Lawful visitors can have express or implied permission to enter a premises. Permission must be genuine

Lowery v Walking (1911) : Permission can be withdrawn but they need a reasonable amount of time to leave

- Public used D's land has short cut

- He puts horse in land, and harmed V

Held : A licence to be on the land was implied from repeated use of trespass which D hadn't stopped

The Calgarth (1972) : Lawful visitors can't go beyond permission granted

Held : If a visitor is invited to use the staircase, they aren't invited to slide down the bannister.

Visitors : Children

Age of child will affect how the SOC to be taken by occupier will be assed

Visitors : Workers

It'll be assessed whether the injury is related to the work or by something else

S.2(1) OLA 1957 : Duty to adult visitor

Occupier of premises owes common DOC to visitors to those premises.

'An occupier owes the same DOC to all his visitors except insofar as he is free to do and does extend, restrict, modify or exclude his duty to any visitors by agreement or otherwise'

What does S.2(2) define?

Common DOC

- 'Duty to take such care as in all circumstances is reasonable to see that visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there'

- Occupier doesn't have to make the visitor completely safe in the premises only to do what is reasonable

Laverton v Kiapasha (2000) : Occupier only has to do what's reasonable (obj test)

Held : Shop owners had taken reasonable care to ensure their customers were safe, they didn't have to make the premises completely safe

Cole v Davies-Gilbert, The Royal British Legion and others (2007) : Common DOC, however does not extend to liability for pure accident. DOC for specific risk can't last indefinitely, where there could be other causes of damage.

Held : The incident was a pure accident and not claimable

Duty to children S.2(3)(a)

There's additional special duty owed to children.

- The younger the child, the grater the care oc must take.

Glasgow Corporation v Taylor (1922) : Allurements, Oc should guard against any kind of 'allurement' or attraction which places a child visitor at risk of ham

Held : Council were liable as they were aware of the danger + berries amounted to an allurement

Phipps v Rochester (1955) : Very young children was injured, the courts are reluctant to find the occupier liable, as the child should be under the supervision of a parent or other adult

Held : Oc is entitled to expect that parents won't allow their young children to go to places that are potentially unsafe

Jolley v London Borough Council : If allurement exists, there will be no liability on oc if damage or injury suffered isn't foreseeable

Held : Council were liable as it was foreseeable that children would play on an abandoned boat

Duty to workers S.2(3)(b)

Common DOC to workers coming on premises to carry out repairs to property or anything on it.

- Oc is not liable where workers don't guard against risks which they should know about

Roles v Nathan (1963)

Held : Oc wouldn't be liable because they would expect sweepers to be aware of this particular danger

S.2(5)

Common DOC doesn't impose on occupiers any obligation to a visitor in respect of risks willingly accepted as his by the visitor

- Oc wouldn't be liable if visitor had taken the risk

Ogwo v Taylor (1987) : Confirmed DOC could be owed to rescuer

Held : They had negligently started a fire which is foreseeable that someone would get hurt even though the firefighter is doing his job D started the fire recklessly.

Independent Contractors

If lawful visitor is injured by negligent work of a workman engaged by occupier, the oc may have defence and be able to pass claim

What are the elements of S.2(4)(b) to be required for a defence?

a.) Must be reasonable for the occupier to have given the work to independent contractor

b.) The contractor who is hired must be competent to carry out tasks

c.) The occupier must check the work has been done properly

Hazeldine v Daw & Son Ltd (1941) : Reasonable for occupier to have hired a specialist

Held : Lift repair is highly specialist work so reasonable to hire a specialist firm

Bottomley v Todmorden Cricket Club (2003) : Contractor who is hired must be competent (Occupier should check the contractor's reference and insurance)

Held : Cricket club was liable and failed exercise reasonable care in choosing safe and competent worker

Woodward v Mayor of Hastings (1945) : Occupier must check the work has been properly done (More complicated + technical the work, the lower the expertise of occupier, they're more likely to employ an expert)

Held : O's failed to take reasonable steps to ensure the work had been properly done which should've been obvious

What does it mean if all of the 3 elements above is satisfied?

- Occupier will have defence to a claim

- Injured C will have to claim directy against contractor

Ferguson v Welsh (1987)

O wouldn't be liable for unsafe system of work since he couldn't reasonably be expected to supervise it.

Defences for OL : Contributory Negligence S.2(5) Occupiers doesn't have liability where visitors 'willingly accepted' the risk

White Lion Hotel v James (2021)

Held : Violent didn't apply but contributory negligence did

Defence 2 : Exclusion Clauses

S.2(1) the O is able to ERME his duty by agreement or otherwise.

- Means O will in an oral or written warning, be able to limit or exclude completely their liability for injury caused to visitor.

- This is the case of residential occupiers, though whether an exclusion clause would work against a child visitor may depend on the age and ability to understand the effect of exclusion

S.2 Unfair Contract Terms Act (1977)

Person can't be referenced to any contract term or to notice given to person generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence

S.65 Consumer Rights Act (2015)

Tader can't be a term of consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence

Exlusions clauses if warned for example in shops

They are ineffective and can't operate as a defence to an occupier if a consumer is injured

E.g. 'if you're injured at any point whilst shopping in our store we won't be liable'

Defences : Warnings

If there is a notice warning of a danger, this can be complete defence for the occupier. A warning can be oral or written

S.2(3)(a) 'in all the circumstances its enough to enable to visitor to be reasonably safe'

Roles v Nathan

- Visitor had no option but to go over bridge

- This situation occupier would be liable if this is all he did not protect visitors