law paper 2 - tort

negligence overview

concerned with compensating people who have suffered damage as a result of carelessness of others - definition found in Blyth v Birmingham waterworks

can come from an act or an omission

1. duty of care owed to claimant

2. duty of care broken

3. claimant suffered damage which was not too remote

negligence- duty of care owed

idea is to establish a legal relationship between the parties

duty of care established through the robinson approach (applying existing precedent) or the caparo test (no previous precedent)

negligence- duty of care owed - Robinson approach

in Robinson v cc West Yorkshire police the Supreme Court emphasised that you should look into existing precedent when deciding if a duty of care exists

eg manufacturer and consumer - Donoghue v stevenson

donoghue v stevenson - c couldnt claim compensation because she hadn’t Brought the drink but the neighbour principle applies where you must take reasonable care to avoid acts or omissions which you can reasonably foresee as likely to injure your neighbour

negligence - duty of care owed - caparo test

objective test used in novel situations where there is no previous statute or precedent

1. was the harm reasonably foreseeable (Kent v giffiths)

2. was there sufficient proximity (bourhill v young)

3. is it fair just and reasonable to impose a duty (hill v cheif constable of West Yorkshire police)

negligence - breach of duty

1. comparing Ds conduct with the standard of care expected from a reasonable person

2. considering various risk factors which may raise of lower that standard

reasonable person test - breached duty if they have failed to act as a reasonable person would have (Blyth v Birmingham waterworks)

standard of care is altered for children, professionals and amateurs

risk factors- if the probability of harm is low, D is not expected to take as much care to guard against the risks, if there is a high probability of harm D is expected to take more care (bolton v stone)

seriousness of potential harm- if potential harm could be serious then standard of care is raised(Paris v Stepney)

unknown risks- if the risk of harm is unknown then there can be no breach of duty (roe v minister of health)

negligence - damage

have to prove the claimant suffered damage caused by the breach of duty referring to loss suffered (physical injury or damage to property)

both factual causation and remoteness must be proved for claim to succeed

1. factual causation- but for test (Chester v afshar)

   intervening acts can break the chain of causation (knightly v johns)

2. remoteness- can only claim for types of losses that are reasonably foreseeable (wagon mound)

   think skull rule- if the type of injury or damage is reasonably foreseeable but is more serious due to a pre existing condition D is liable for consequences(smith v leech brain)

defences to claim in negligence - contributory negligence

where the defendant alleges that the claimant has partly caused or contributed to the damage

the law reform act 1945 provides a judge may reduce any damages awarded to the claimant, this is a partial defence (from v butcher)

defences to claim in negligence - consent

based on the idea if the claimant voluntarily agreed to the risk of harm with full knowledge of the risk then he/she can’t complain when they do suffer injury

this is a complete defence so the claimant will receive no damages

its necessary to show the claimant

1. knew the nature and extent of the risk of harm

2. voluntarily agreed to it (Morris v Murray)

remedies In negligence

the court can award monetary compensation for personal injury or property damage with the aim to put the claimant in the position they were in before the tort had taken place

special damages- cover pre rial expenses from the date of the accident to the date of the judgement

general damages- cover post trial losses eg pain and suffering, loss of amenity, future losses or specific injury

lump sums and structured settlements - damages usually awarded in a lump sum bu parties can agree to structured settlement

mitigation of loss- the claimant is under a duty to keep their loss to a reasonable level eg the claimant can’t claim private treatment if there is one suitable under the NHS

negligence evaluation - duty of care eval

incremental approach -

to impose liability would expose people to unpredictable liability and create compensation culture . the Robinson approach has led to an incremental approach duty of care which decides new cases on the basis of old cases which ensures certainty

this approach may prevent claims that have merit and leave deserving claimants without compensation eg ABC v st Georges healthcare NHS trust

fair just and reasonable-

the third part of the caparo test allows the court to decide, even though the harm was reasonably foreseeable and the parties are sufficiently close, whether its fair to impose a duty , this is strongly based on public policy

judges have been reluctant to impose a duty of care if it would give rise to a large volume of claims known as the floodgates argument used in (Alcock v cc West Yorkshire)

however judges seem more reluctant to impose a duty f it will act as a deterrent or raise standards of care in the future

negligence evaluation- breach of duty eval

objective standard of care- we compare their conduct to that of a reasonable person but the standard of care is objective so D will be liable if their conduct falls below the standard expected by the reasonable person (Blyth v Birmingham waterworks) which achieves justice

however it can be seen as unfair to take no account of inexperience eg (nettleship v Weston)

the reasonable person test is fair to defendants because it accepts accidents can happen- there is no duty to prevent harm to others (Glasgow corporation v muir) because the defendant acted how a reasonable person would there was no breach and no claim

deterrance- the objective standard allows the law of negligence to act as a deterrent because it helps prevent similar negligent behaviour in the future (haley v LEB) provides an incentive for other companies to take greater care

professional standard- its fair the defendants who are professionals are judged to a higher standard but it can be difficult to establish breach of duty in medical cases because of problems in gathering evidence (Bolam)

risk factors- rules on risk factors help achieve justice because they can raise or lower the standard of care eg its fair that in Paris v Stepney the standard of care was raised due to a vulnerability

negligence evaluation- damage eval

factual causation -

occupiers liability - who is an occupier

1957- lawful visitors

1984- unlawful visitors

occupiers of the premises which may be but don’t have to be the owner or the tenant

wheat v lacon- the manager of the pub was an occupier as he had control of the premises

there is no requirement for physical occupation illustrated in (Harris v birkenhead)

occupiers liability - premises

broadly defined in s 1. (2) which includes land, buildings , houses as well as vehicles and fixed or moveable structures eg ladders and bouncy castles

occupiers liability- lawful visitor or trespasser

lawful visitor- someone who has express or implied permission to enter the premises and those with a contractual or legal right - 1957 act applies

unlawful visitor- a person who has no permission or authority to be on the occupiers land, a lawful visitor can also become a trespasser by exceeding permission granted to them - 1984 act applies

occupiers liability - liability to lawful visitors

a lawful visitor who suffers damage due to the state of a defendants premises may be able to claim for personal injury and property damage

OLA act 1957 states an occupier of premises owes a duty of care to all lawful visitors “to take such care as in all the circumstances is reasonable to keep the visitor reasonably safe for the purpose which he/she is invited to be there”

Laverton v kiapasha takeaway

occupiers liability- child visitors

OLA act 1957 provides that an occupier must be prepared for children to be less careful than adults

a higher standard of care is owed as they are a vulnerable age group and are less likely to appreciate the risks an adult would (jolly v Sutton)

an occupier is entitled to assume a child would be accompanied by someone looking after them which may reduce the standard of care expected from the occupier (Phipps v Rochester corporation)

occupiers liability - professional/ skilled visitors

owe a common duty of care however an occupier may expect a person in the exercise of his trade will appreciate and guard against any special risks they should know about through their work (roles v nathan)

defences to claim by a lawful visitor - independent contractors

where a visitor is injured due to a danger created by an independent contractor they have a claim if these conditions are met

1. it was reasonable to hire a contractor

2. reasonable precautions were taken to ensure the contractor was competent

3. if the nature of the work allows, reasonable checks were taken to inspect the work

   (haseldine v Daw )

defences to claim by a lawful visitor - warning notices

OL is discharged if there was effective warning of the danger, the warning must be sufficient and enable the visitor to be reasonably safe (rae v marrs)- warning sign was not sufficient

defences to claim by a lawful visitor - exclusion clauses

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 but consumer rights act 2015 prevents businesses

contributory negligence- courts will consider the degree of care a reasonable visitor is expected to take for their own safety which may reduce compensation

consent- if claimant willingly accepted risk of negligence

liability to trespassers

OLA 1984 applies to trespassers who have no permission or people who have exceeded their permission

a trespasser who suffers injury due to the state of Ds premises can claim for personal injury but not damage to property (siddorn v patel)

when does a duty arise to trespassers

an occupier will only owe a duty if

1. they are aware of the danger or have reasonable grounds to think it exists

2. they know of have reasonable grounds to think the trespasser is in the vicinity of danger or may come into danger

3. the risk is one again which in all the circumstances he/she may reasonably expected to offer the other some protection

   if these conditions are not satisfied then the occupier does not owe a duty of care (higgs v foster)

standard of care for trespassers

to take such care in all the circumstances is reasonable to see the trespasser does not suffer any injury on the premises by reason of the danger concerned

standard of care is objective depending on the circumstances of each case (ratcliffe v mcconnell)

defences to claim by a trespasser

warning notices- a warning sign can be an effective defence but would have to make danger clear (westwood v post office)

contributory negligence- can apply to reduce the damages payable to the claimant

consent- defence allowed if trespasser appreciates the nature and degree of risk complete defence

eval of OLA

danger must arise due to state of premises -

there will be no claim if injured due to own behaviour (geary v wetherspoon)

an occupier owes no duty to warn against obvious dangers, this limits claims but it seems fair an occupier should encourage personal responsibity

occupiers should keep visitors reasonably safe-

1957 act automatically imposes a duty of care even if they dont know the danger this is fair they owe a greater duty to lawful visitors as they have permission, an occupier only expected to keep visitor reasonably safe but in injury can still occur (laverton v kiapasha takeaway)

private nuisance

fearn v tate gallery - a use of land which substantially interferes with the ordinary use and enjoyment of neighbouring land judged by the standards of an ordinary person

1. right to bring a claim

2. interference

3. unlawful

private nuisance- right to bring a claim

claimant has a right to bring a claim if they have a legal interest in the land and have been affected by the interference (hunter v canary wharf)

a person can be liable for a nuisance they did not create if they adopt the activity in question (tetley v chitty)

private nuisance- interference

must be a substantial interference in terms of physical damage and loss of amenity

physical damage- eg damage to crops from fumes (halsey v esso)

loss of amenity- inconvenience which affects the ordinary comfort of human existence Cs ability to enjoy land is affected (bone v seal)

interference must be indirect and you cant claim for personal injuries

private nuisance- unlawful interference

it will not arise if they are making a common and ordinary use of land and the activity is conveniently done

it must be decided whether the acts are

1. part of the ordinary use and occupation of the land

2. whether they are conveniently done with proper consideration for the neighbours

   (sturges v bridgman)

3. to decide whether the act was conveniently done the length and degree of the nuisance must be considered as well as the time of day (barr v biffa waste)

defences to private nuisance

prescription- if d has carried out act for over 20 years and the claimant was aware and hasn’t complained before (sturges v birdgman)

statutory authority- an action will fail if the nuisance is created by a public body acting under statutory authority (allen v gulf oil)

remedies in private nuisance

injunction- court order prohibiting or controlling an activity (kennaway v thompson)

damages- courts may argue damages are more appropriate especially if permission was granted for the activity

occasionally courts will grant punitive damages where extra money is awarded to C because the courts disagree with Ds behaviour

abatement- the right for the claimant to take reasonable steps to deal with the nuisance themselves

rylands v fletcher

developed to deal with specific issues relating to pollution

D constructed a reservoir on their land and water leaked into a mine shaft which spread to a working mine which caused damage

if a person brings or accumulates on his land anything which, if it should escape may cause damage to his neighbour he does so at his peril

the claimant must prove on the balance of probability-

1. right to bring action

2. brought onto land and kept there

3. dangerous thing

4. non natural use (unusual circumstance)

5. the thing escaped onto adjoining property

6. caused reasonably foreseeable damage

vicarious liability

defendant is held liable for a tort committed by a third party the the aim to ensure the victim is able to receive compensation for injury or damage suffered

two stage test

1. the relationship must be one of employment or akin to employment

2. there must be a close connection between the wrongful conduct and the acts the tortfeasor was authorised to do

   relationship of employment—> close connection test

   if a person is injured due to the negligence of an independent contractor they must sue them not their employer (barclays bank v various claimants )

   integration test- a worker will be an employer if his work is fully integrated into the business

VL are they an employee

integration test- a worker will be an employee if their work is fully integrated into the business

economic reality test-

1. employee agrees to provide work in exchange for a wage

2. the employee accepts the work will be subject to the control of the employer

3. all considerations in the contract are consistent with there being a contract of employment rather than any other relationship

close connection test

employee acting negligently - if an employee does his/ her job badly the employer can be liable

acting against orders - if an employee is acting against orders in the way they do it (limpus v london general omnibus)

frolic of own - nothing to do with their employment or at time or place outside of work (hilton v thomas burton)