OCR A-Level Law Paper 2

Rules and Theory

Liability in Negligence (+eval)

1. duty of care

   1. og test - donoghue v stevenson - 1932 (reasonable care to avoid acts of omissions you can reasonably foresee + likely to injure AND your neighbour is anyone so closely and directly affected that they should be considered)

   2. NEW test - caparo v dickman - 1990 (damage reasonably foreseeable AND relationship of proximity between parties AND fair just and reasonable to impose)

   3. HOWEVER c v d test in cases WITHOUT PRECEDENT

2. breach of doc

   1. objective test - blyth and birmingham ww (1856) - omitting smth a reasonable man would do/doing smth wouldn’t do

      1. professional judged against other professionals (Bolam v FHMC)

      2. learner judged against graduate (Nettleship v Weston)

      3. child judged against child

   2. Risk factors

      1. degree of risk - greater risk = more precautions needed - Bolton v Stone

      2. cost of precautions - risk vs cost - latimer v AEC

      3. srsness of injury - more srs = greater level of care - Paris v SBC

      4. some risk acceptable if socially important - Watt v HCC

3. Damage

   1. causation - factual (but for test)

   2. legal causation - remoteness of loss - must be foreseeable (Wagon mound) - novus actus interveniens foreseeable BUT precise chain of events doesn’t have to be foreseeable - thin skull rule

Occupier’s Liability Act 1957 (+ eval)

def - duty owed by occupiers to those who come onto their land in respect of lawful visitors

1. lawful visitors - includes invitees, licensees, contractors, statutory right (read gas meters), implied license at common law (repeated trespass and no action taken to prevent it) - requires awareness of trespass + danger and courts more likely to imply license if something attractive on land (allurement rule)

1. duty of care

   1. imposes common doc - take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises

      1. claimable damage = death, pi and damage to property

      2. s1(3)(a) - premises occupied applies not only to land and business but ALSO vessels, vehicles and aircraft

2. breach of duty

   1. standard of care - reasonable occupier (failure to reach the given standard will amount to a breach)

   2. standard varies when an occupier must be prepared for children (less careful) - court takes into account age/competency of child - Jolley v Sutton LBC

      1. an occupier can also rely on a professional to understand and avoid special risks associated - Roles v Nathan

   3. warnings and warning signs - discharge duty with a warning only if it covers the danger and it enables the visitor to be safe in all circumstances - Darby v National Trust

   4. occupier isnt liable for dangers created by an independent contractor if they 1. acted reasonable in all circumstances in entrusting the work AND 2. took reasonable steps to satisfy themselves the work was properly done and the contractor was competent

3. Defences

   1. volenti non fit injuria - risks willingly accepted

   2. contributory negligence - Law Reform (Contributory Negligence) Act 1945

   3. exclusion of liability - occupier can extend, restrict, exclude or modify their duty to visitors, in so far as they are free to do so

Occupier’s Liability Act 1984 (+ eval)

def - imposes liability on occupiers with regard to people other than visitors - trespassers + burglars - BRB v Herrington

1. trespasser - persons other than visitors

2. duty of care - occupier owes a duty of care to a non-visitor if:

   1. the occupier is aware of danger or has reasonable grounds to believe it exists and

   2. the occupier knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity of the danger, and

   3. the risk is one in which, in all the circumstances of the case, the occupier may reasonably be expected to offer the other some protection.

   4. ONLY pi and death is protected here - not property

3. breach of doc

   1. the duty is to take reasonable care under the circumstances that the other does not suffer injury on the premises because of the danger concerned - Ratcliff v McConnell

   2. it must be the premises themselves that are dangerous, not the activity the claimant chooses to engage in

   3. warnings - duty may be discharged by giving a warning or discouraging others from taking the risk - Tomlinson v Congleton

4. defences

   1. volenti non fit injuria - risks willingly accepted

   2. contributory negligence - Law Reform (Contributory Negligence) Act 1945

Private Nuisance

def - protecting the rights of an occupier against ‘unreasonable interference with the enjoyment or use of his land’
who can bring a claim? someone with proprietary interest (Hunter v Canary Wharf) HOWEVER the D does not need to own or occupy the land that the nuisance is from

1. what is a nuisance? - flooding, smells, encroachment (extending property into someone elses) - Lemmon v Webb, noise, balls - Miller v Jackson, brothel and physical damage

2. unreasonable interference? unreasonable use of land by the d - London Borough of Southwark v Mills

   1. the courts will consider:

      1. nature of the neighbourhood - planning permission may change nature of locality but cannot give permission for a nuisance - Coventry v Lawrence

      2. duration - longer = greater interference BUT temporary still counts

      3. sensitivity - is C abnormally sensitive? not liable

      4. malice - if d’s actions malicious - more likely to be unreasonable - Hollywood Silver Fox Farm v Emmett

3. foreseeability - wagon mound for remoteness

   1. hunter v canary wharf - personal injury not a possibility

4. remedies - damages or injunction

Rylands v Fletcher

def - a form of strict liability (may be liable without being negligent) - controversial and therefore restrictive

rylands v fletcher - d constructed reservoir over unused mines - water seaped through and damaged nearby working mine

elements

1. accumulation - d must bring hazardous thing onto their land and keep it there for d’s own purposes and the thing that escapes doesn’t have to be the thing accumulated

2. a thing likely to do mischief if it escapes - need not be inherently hazardous - likely to cause damage like a flag pole, branches from yew trees, a fairground ride (hale v jennings bros) and electricity HOWEVER it can’t be for personal injury - TransCo v Stockport

3. escape - from d’s land - injury inflicted by the accumulation of a hazardous substance on the land itself will not invoke liability - Read v Lyons

4. non natural use of land - use must be ‘extraordinary and unusual’ - TransCo v Stockport

5. remoteness - subject to rules on remoteness - wagon mound

Vicarious Liability (+ eval)

nature and purpose of vicarious liability - vicariously liable for the torts of their employees that are committed during the course of employment because

1. employer to have insurance and means to compensate the victim

2. a result of activity being performed by the employee on behalf

3. part of the business activity of the employer

4. the employee will have created the risk of the tort committed by the employee

5. employee will, to a greater or lesser degree, have been under the control of the employer

traditional test of employment status - Ready Mixed Concrete v Minister of Pensions

1. work is provided in consideration of a wage

2. tortfeasor is under the other party’s control

3. other terms of the agreement are consistent with it being a contract of employment

4. outdated salmond test

   1. authorised act OR

   2. unauthorised mode of carrying out authorised act

   3. OR frolic of their own (Joel v Morison)

5. nowadays we use close connection test

   1. what was the nature of the job?

   2. was there a sufficient connection between the position in which the employee was employed and the wrongful conduct to make it right for the employer to be held liable

6. RECENT DEVELOPMENT - Morrisons v Claimants (2020) - no close connection if pursuing personal vendetta COMPARE TO MOHAMUD V MORRISONS

7. employer at fault because they:

   1. have chosen an employee who is liable to, or who could, commit a tort at work

   2. the training for the job may be inadequate or inappropriate

   3. should have supervised the employee more effectively

8. traditionally this is just for classic employer/ee relationship but it has since been developed

   1. not responsible for an independent contractor - Barclays Bank plc v Various Claimants (2020)

Defences

contributory negligence - partial defence

1. c failed to take proper care in the circumstances for their own safety - lack of proper care for own safety is not the same as ‘breach of the duty of care’. It varies, and all circumstances are taken into account, including the age of the claimant

2. failure to take care was a contributory cause of the damage suffered. This has included: no seat belt (Froom v Butcher), no helmet on a motorcycle, unfastened helmet on a motorcycle, exposing oneself to danger by using a vehicle inappropriately, suicide, failure to follow safety instructions

volenti non fit injuria (consent) - complete defence

1. voluntary - freely entered, needs to have free choice, seen commonly in employment, rescuers and suicide

2. agreement - express or implied - willingness to accept legal and physical risks - Nettleship v Weston

3. knowledge - full nature and extent of the risk, rescuer is not regarded as having freely accepted risk, a ppt in sporting events is taken to consent to risk of ordinary injury

private nuisance defences

1. ordinary use of land

2. statutory authority - nuisances can be caused by public authorities acting under statutory power - roadworks

3. act of god (independent freak nature accident) - once the occupier becomes aware of the nuisance and fails to remedy it within a reasonable time, they may be liable

4. prescription - rarely works - committing the nuisance for 20 years and that C has been aware of this and done nothing about it - Coventry v Lawrence

rylands v fletcher

1. act of stranger - complete defence if the escape was caused by the act of a stranger over which D had no control and not foreseeable

2. act of god - once D becomes aware of the nuisance and fails to remedy it within a reasonable time, they may be liable

3. statutory authority

4. consent/benefit - If C receives a benefit from the thing accumulated, they may be deemed to have consented - Peters v Prince of Wales Theatre

Remedies

compensatory damages - restitutio in integrum

1. general damages - non-pecuniary - cannot be calculated exactly

   1. pain and suffering (all 3 tenses) and C must be aware - Wise v Kaye

   2. loss of amenity - loss of things previously enjoyed

   3. future loss - pension rights

   4. specific injuries - standard tariff for most injuries

   5. post trial loss of injuries - multiplicand x multiplier = future loss of earnings

2. special damages - can be assessed with accuracy like medical expenses or loss of earnings

   1. pre trial expenses - precises figure can be calculated

   2. property - damage assessed by reference to market value of property

interim and periodical payments - usually lump sum

1. interim - payments made before full settlement - personal injury claims - catastrophic injuries (for things like adapted housing and expensive care)

2. periodical - future pecuniary loss in respect of personal injury

types of damages

1. nominal - often paid when no damage has been suffered

2. contemptuous - may be awarded when court feels that the action should never have been brought

3. aggravated - court feels that C’s injury has been aggravated by D’s conduct

mitigation of loss -- c must do everything reasonable to do so

injunctions - court order to to prevent a d from doing something or to force a d to do something

1. used in torts such as nuisance and trespass

2. when public interest outweighs the claimant’s interest, the court may decide to award damages in lieu of an injunction (COVENTRY V LAWRENCE)

3. damages may be awarded in addition

4. types of injunction

   1. prohibitory - stop the activity

   2. mandatory - repair the consequences

   3. partial - continue but with restrictions

Negligence evaluation

1. Duty of care on the police - Historically, the police have been deemed not to owe a duty of care to the public at large - justified because the police would not effectively be able to carry out their duties and that this is not as harsh on the C as it first appears, due to alternative routes to compensation BUT This rule has been lifted in respect of specific duties

2. Definition – reasonable man - Objective test – same standard is expected of everyone, unless you are a professional. justified because Professionals have many years of training and therefore must be more aware of the issues leading to a breach BUT unjustified because This higher standard provides an inconsistency to the original reasonable man rule

3. Novus actus interveniens - C goes uncompensated if there is a novus actus - justified because A unique act must break the chain of causation since it will be significant enough to do so BUT unjustified because C will be uncompensated unless there is a negligent third party

4. Rules on remoteness - The rules are simply a means of limiting liability - justified because There must be rules on both liability and the amount of compensation to allow for certainty and clarity BUT unjustified because Many of the rules seem arbitrary and in favour of D, rather than the injured party who may never be fully compensated following injury

OLA 1957 evaluation

1. Pre-section 2(1) - Pre-Act, different duties were owed to different types of lawful visitor - justified because Pre-Act there was a complicated set of common law rules which caused confusion and injustice BUT unjustified because The 1957 Act is a statutory form of negligence which now creates a common duty of care to all lawful visitors.

2. Exclusion clauses/ limitation notices - An occupier can still have numerous means of reducing, removing or avoiding liability - justified because The Act relies on lawful visitors being prudent to look after themselves at all times, including minors BUT unjustified because An occupier can therefore determine the extent of their duty via exclusion clauses

3. Exceeding permission to be on premises - Once a lawful visitor exceeds their scope to be on the premises, they become a trespasser - justified because justified because Occupiers’ liability depends on the scope of the occupier’s consent and permission is only given for specific areas or activities so liability should only apply within those limits BUT unjustified because It can be unclear exactly when a visitor has gone beyond the scope of their permission, creating uncertainty and potentially harsh outcomes where liability changes unexpectedly

4. Children as lawful visitors - A higher standard of care is placed on an occupier to ensure the safety of children than of adults - justified because Children are less likely to see the risk or danger, or the impact of acting outside the scope of their permission to be on the premises BUT unjustified because To what lengths must an occupier go to avoid injury? If present, parents should be looking after the children, not the occupier

OLA 1984 evaluation

1. Pre-84 Act - Pre-84 Act, trespassers were treated harshly. - justified because Trespassers should not be on other people’s property. BUT unjustified because this should not be an absolute duty, as we should have some responsibility for certain injuries to trespassers, even if a moral duty to take care of others.

2. The duty itself to trespassers - The duty is unfair to the occupier. justified because Trespassers enter at their own risk BUT unjustified because Occupiers must take responsibility for injuries that occur on their premises – a trespasser is simply a label and nothing else.

3. Children as trespassers - There are difficulties of children appreciating danger as a trespasser - justified because A higher duty must be owed to children who cannot appreciate risk in the same way as an adult BUT unjustified because Children should be under the care and supervision of a parent or guardian. They should understand that trespassing is wrong and can be dangerous.

4. Compensation - Compensation is only available for injury. - justified because Trespassers are deserving of less protection than are lawful visitors. BUT unjustified because Occupiers must take responsibility for injuries that occur on their premises – a trespasser is simply a label and nothing else.

vicarious liability evaluation

1. Fault Vicarious liability is a contradiction to the basic fault principle – take responsibility for your own actions, not those of others. - justified because Employers are in a better position to compensate the injured party than the employee.BUT unjustified because An employer is blamed for the actions of an employee.

2. Employer ‘bans’ an unsafe practice - An employer can still face liability even if they have expressly prohibited the unsafe practice.- justified because An employer must be consistent in ensuring the unsafe practice does not continue BUT unjustified An employer cannot watch their entire workforce all of the time and must trust their employees to carry out their work correctly

3. Timing of unsafe act etc. - The tort will often have occurred before the employer realises that the employee behaves badly and should be disciplined. justified because An employer should insist on safe and correct working practices at all times and be able to guarantee those practices. BUT unjustified because It is unfair to hold liability for retrospective actions over which the employer had no real control.

4. Level of carelessness of the employee - The employer may be liable even for mere carelessness on the employee’s part. justified because Carelessness is carelessness and should, where significant enough, be prevented and compensated if not. BUT unjustified because Where do you ‘draw the line’ of limitation? This could lead to near inconsequential acts giving rise to liability.