Negligence plans
Negligence
→ Define: Negligence was defined in Blyth V Birmingham Waterworks as “failing to do something which the reasonable person would do or doing something the reasonable person would not do.”
Negligence can come through an act or omission.
The claimant must prove on a balance or probabilities…
they were owed a Duty of Care by the D
the D was in breach of duty
the C suffered damages caused by the D, which were not too remote.
→ Key Element 1: DUTY OF CARE
THE ROBINSON APPROACH: If the relationship between the C and D has an established duty or is similar to that situation, apply it.
Some established duties:
Donoghue V Stevenson - Manufacturer and Consumer
Bolam V Barnet Hospital - Doctor and patient
Nettleship V Weston - Driver and road users
Paris V Stepney - Employer and Employee
In novel situations apply the Caparo test:
was the harm reasonably foreseeable? (Kent V Griffiths)
was there sufficient proximity, in time space or relationship between the C and D (Bourhill V Young)
Is it fair, just and reasonable to impose a duty? (Hill v CC West Yorkshire)
→ Key Element 2: BREACH OF DUTY
Breach of duty is made up of two things,
Comparing D’s conduct with the standard of care expected from a reasonable person and
considering various risk factors which may raise or lower that standard.
Step 1: The reasonable person test
define: D will have breached their duty of care if he fails to act in a way which a reasonable person would have - Blyth V Birmingham waterworks
As test is objective it ignores characteristics of the D, such as inexperience - Nettleship V Weston
characteristics that will be noted are:
children (Mullins V Richards)
Armatures (Wells V Cooper)
Professionals (Bolam V Barnett Hospital)
Step 2: Risk Factors
these Include:
Seriousness of harm - Paris V Stepney - if the potential harm can be serious due to vulnerable circumstances standards will rise
cost and practicality - Latimer V AEC Ltd - Court will balance risk with cost of gaurding it
probability of harm - Bolton V Stone - if risk is low/high the standard will be lower/higher
unknown risks - Roe V Minster of Health - If risk of harm is not known there can be no breach of duty.
potential benefits - Day V High Performance Sport - Standards may be lower if there is a greater public benefit
→ Key Element 3: DAMAGE
The claimant must prove that they have suffered damage caused by D’s breach of duty.
Damage defined as personal injury or damage to property.
Both factual and legal causation must be proved.
Factual Causation
The “but for test” - but for D's act or omission would C have suffered damage?
Barnett V Chelsea & Kensington Hospital - but for failure to diagnose D would have died anyway.
Chester V Afshar - But for D’s failure to inform risks of surgery C would not have had it and not suffered damages.
Case for intervening acts: Knightley V Johns
Legal Causation
C can only claim for types of loss that are a reasonably foreseeable result of D’s breach.
The Wagon Mound - not foreseeable
Hughes V Lord Advocate - foreseeable
Think Skull Rule: Smith V Leech Brain
→ Defenses to claim:
Contributory negligence
C has partially contributed to the damage, leading to a partial defense
Set out in Law Reform (Contributary Negligence) Act 1945
Key Case: Froom V Butcher - damages caused by C not using seatbelt.
Consent
C has voluntarily agreed to the risk of harm with dull knowledge of the risk and cannot claim if they do suffer damages.
A complete defense.
C must know the Nature and extent of risk of harm and agree to it voluntarily.
Key Case: Morris V Murray - He had accepted the risk of injury by accepting a ride.
Remedies:
The aim of compensatory damages are to put C in the same position they would have been if the event had not taken place.
SPECIAL DAMAGES
covers pre-trial expenses, since the accident.
Called pecuniary losses because they can be calculated financially
EG:
Pre-trial expenses
loss of property (destroyed = market value damages awarded, damaged = cost of repair.)
GENERAL DAMAGES:
covers post-trial losses.
Pecuniary and non pecuniary losses
EG:
Future losses (Medical care, loss of earnings..)
Pain and suffering
Loss of amenity (Loss of things C used to enjoy like sport)
Specific injuries (C can set an amount for eg losing a leg.)
Damages will be either paid as a lump sum or structured settlements.
C should keep the losses to a reasonable level.
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Negligence evaluation
Duty of care eval
→ Incremental approach
Imposing a liability on anyone as a result of negligence would be unpredictable and create a compensation cultrue. The Robinsons Approach has led to an incremental approach, meaning cases will be based on similar cases already decided on. This creates certainty in law and prevents unreliable claims.
On the other hand, this may prevent claimants with merit without compensation. ABC V St George’s Healthcare NHS Trust. C argued doctors have duty to inform of past family diseases. But due to her farther refusing to give disclosure this could not be possible. Because there was no past case to rely on, judges are usally not comftorbale with making such a big change in law, meaning developing law on a case by case basis is a slow process.
→ Fair. Just and Reasonable
This part of the caparo test means judges can make decsions for what is best for society. Because judges are unelected they are often criticesed as unsituited to make social judgements.
The courts are also often reluctant to impose duties of care in fear of opening the floodgates to a large volume of claims. As seen by Alcock V CC of West Yorkshire, where the fear is there will be a large number of claims and hefty cost, often at the expense of tax payer money.
Judges seem more willing to impose a Duty if it will act as a deterrent or raise standards of care in the future. This can be seen in Smolden v Whitworth & Nolan in which a referee was held liable for failing to ensure players’ safety. This decision encourages a more responsible approach from other referees.
Usally claims against public bodies like police, or hospitals and rescue services may fail because the service they provide is paid by the public, and their funding will be depleted if they allow to many claims to succeed. Hill V CC West Yorkshire is an example of this, where the court held it would be against public interest to impose a duty, as the police but not be able to perfrom their functions fully, as they would be held back.
It would be unfair to give a “blanket of immunity” from negligent cases, as seen in Robinson V CC West Yorkshire, where the claim was succesfull as they had harmed a member of public while performing their duty, which was reasonably forseeable. This choice insured justice to the C.
Duty of care eval renewed
→ Imposing a duty of care.
Courts develop the law on duty of care by taking on an incremntal approach.
This means they will decided cases by comparing them to already established duties. Ensuting certainty and preditablity. EG: Robinsons Approach.
But developing law on a case by case basis, can be a slow process, seen by ABC V St Georges Healthcare NHS Trust.
→ Is it fair just and reasonable.
Judges have identifed different (non legal) polocies as justifactions for imposing a duty or not:
policy relating to specific groups
Robinson V CC West Yorkshire- duty imposed as Police should no have an immunity from negliegence claims. and should owe a duty of care to people nearby, espeicaly if this duty is not detrimetnal to policing generaly.
Hall V Simons - fair that courts ended immuntiy for barristers and solictitors as it raises the standards of which they should abide by.
floodgates argument
Hill V CC West Yorkshire - no duty imposed as it would be wrong to open the floodgates and impose a duty on emergency services which could restirct effeictvness.
practical consdierations
Smolden V Whitworth & Nolan
moral arguments
McKay V Essex healthy authority - Doctor owed no duty to reccomened an aboration of a severly disbaled fetus. - The law should respect moral princpals (right to live).
incremental approach
notes
so i need to finish this but rn the presentations and book isnt helping with how i would apply this in a question so im thinking to instead plan a few questions using these and that shd help way more than this.
OLA 1957/84
READ CASES AT BACK OF BOOK PLS
→ define: Occupiers liability is a branch of negligence, developed by statute, occupiers owe a duty to people who come onto their premises, the duty differs according to whether the C is a visitor or trespasser, the danger must arise from the state of the premises.
KEY ELEMENT 1: Occupier
The test for figuring out if someone is an occupier is by looking at if they have control of the premises.
Wheat v Lacon - was an occupier as he had control (even though was not the owner)
Bailey v Armes - did not have sufficient degree of control over roof area to be occupiers
KEY ELEMENT 2: Premises
defined in s.1(2)
includes land, buildings, houses, vehicles, movable or fixed structures like ladders
KEY ELEMENT 3: 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 to enter (OCA 1957)
Trespasser - a person who has no permission or authority to be on the occupiers premises, a lawful visitor can become a trespasser by exceeding the permission granted to them. (OLA 1984)
Whether C is a lawful visitor or a trespasser, a duty of care will only cover “damages due to the state of the premises”
Geary v Wetherspoon - was C’s own fault. No liability.
KEY ELEMENT 4: LIABLITY TO LAWFUL VISITORS 1957
→ The OLA 1957 states that an occupier of premises owes a common duty of care to all lawful visitors, S,2(2) states
“To take such care as in all the circumstances is reasonable to keep the visitor reasonably safe for the purpose for which he is invited to be there.”
- It is the visitor rather than the premises, so an occupier would have to take extra care if it was a blind person for example.
Laverton V Kiapsha Takeway - a visitor must not be completely safe but only reasonably safe
Objective test: Did the occupier act as the reasonable person would have done to keep the visitor safe?
Rochester Cathedral V Debell - The premises must not be completely safe, as visitors are expected to take reasonable care for their own safety, the sate of premises must pose a “real source of danger”.
Cole v Davis-Glibert and others - a duty over a specific risk cannot last forever
CHILD VISITORS:
S.2(3)(a) OLA 1957 provides that an occupier must be prepared for children to be less careful than adults
Jolley v Sutton LBC - higher standard of care is owed to children because there are more vulnerable as they are less likely to appreciate the risks an adult would and may even be attracted to the danger.
Phipps v Rochester Corporation - occupier can assume young children will be cared for by parents
Bourne Leisure v Marsden - accidents can occur where no one is at fault.
PROFESSIONAL/SKILLED VISITORS
S.2(3)(b) OLA 1957 states that “An occupier may expect that person in the excerise of this trade will appreciate and agurd agasint any speical risks which they ought to know about trhough their work.”
→ An occupier can lower the standard of care owed to a tradesperson is respect of special risks asscociated with their job.
Roles v Nathan - claimed failed because they as expert should know the risks
DEFENSES TO CLAIM BY A LAWFUL VISITOR
1.) INDENDANT CONRTRACTORS
S.2(4)(b) OLA 1957, when a visitor is injured due to a danger created by an indepedant contractors they have a defense provided:
It was reasonable to hire a contractor
Reasonable precautions were taken to ensure the contractor was competent
If the nature of the work allows, reasonable checks were taken to inspect the work.
Haseldine v Daw - occupier was not liable as it was reasonable to hire a contractor.
Bottomley v Todmorden Cricket Club - Occupier liable as they had failed to chose safe and competent contractors
Woodward v Mayor of Hastings - occupier liable as had failed to take reasonable steps to check work had been done properly.
2.) WARNING NOTICES
S.2(4)(a) OLA 1957 provides occupiers liability is discharged if he gives effective warning of the danger, the warning must be suffiecient enough to enable the visitor to be reasonably safe.
Rae v Marrs - Warning sign not suffiecent as it could not be seen.
Staples v West Dorset - no warning sign needed as danger was obvious and visitor should be aware.
Exclusion cause (resirtic or prevent duty from arising in the first place)
Residential properties can restrict liablity for death, inury or property damage
Consumer rights Act 2015 prevents businessess from restricting liablility for death or personal injury on premises.
(those signs where its like we do not accept responsbility for death)
CONTRIBUTORY NEGLIEGENCE
Courts will consider the degree of care a reasonable visitor can be expected to take for their own saftey and may reduce compensation if the C is party responsbible (PARTIAL DEFENSE)
CONSENT
Complete defense which applies if the claimant willingly accepted a risk of negliegence.
KEY ELEMENT 4: LIABILITY TO TRESPASSERS OLA 1984
A trespasser who suffers injury due to the state of premises may be able to claim for personal injury but not damage to property s.1(8)
Siddorn v Patel - danger arouse due to C dancing on a garage roof rather than the condition of the premises.
S.1(3) OLA 1984 provides the occupier will only owe a duty to a trespasser if
a) he is aware of the danger or has reasonable grounds to believe it exists
b) he knows or has reasonable grounds to believe the trespasser is in the vicinity of the danger or may come into the vicinity of the danger.
c) the risk is one against which, in all circumstances he or she may reasonably be expected to offer the other some protection.
Both A and B are subjective and relate to the knowledge of D.
Rhind v Atsbury - s.1(3)(a) did not know of the danger
Higgs v Foster - occu had no reason to suspect a trespasser would come within the vicinity of danger s,1(3)(b)
Donoghue v Folkestone Properties - weather influences wether it was forseeable
Tomlinson v Congleton BC - No duty owed under s.1(3)(c ) as funding is taken into account
KEY ELEMENT 5: THE STANDARD OF CARE
Duty owed by occupiers to trespassers under s.1(4) OLA 1984 is “to take such care as in all the circumstances is reasonable to see that the trespasser does not suffer injury on the premises by reason of the danger concerned.” (Objective)
Ratcliff v McConnell - occupiers must not gaurd against obvious dangers
Keown v Conventry NHS Trust - standards are not significantly lowered when a minor is involved.
DEFENCES TO A CLAIM BY A TRESPASSER
Warning notices
S.1(5) A warning sign must make the danger clear (Westwood v Post Office)
Contributory negligence
Reduce damages payable to claimant
Consent
complete defense
OLA evaluation
Torts connected to land
Private Nuisance
→ define: As defined by the case of Fearn v Tate Gallery, a private nuisance is “A use of land which substantially interferes with the ordinary use and enjoyment of neighboring land, judged by the standards of an ordinary person.”
In order to establish a liability in private nuisance, C must prove on the balance of probabilities that, they have a right to bring action and the person being sued is capable of being the defendant, that there is a substantial interference in the form of physical damage or loss of amenity and that the interference is so sufficiently serious that in all circumstances it would be considered unlawful.
KEY ELEMENT 1: RIGHT TO BRING A CLAIM and CAPABLE DEFENDANT
Hunter v Canary Wharf - a claimant has a right to bring action if they have a legal interest in the land(Landowner, Tenant) , but not members of family or guests.
Tetley v Chitty - example of D
Sedleigh Denfield v O’Callaghan - A person can be liable for a nuisance that he did not create if the “adopts” the activity in question.
Leakey v National Trust - D can be liable if the result was of natural causes if D was aware of the nuisance and failed to deal with it.
Anthony v Coal Authority - D must not have an interest in the land at the time
KEY ELEMENT 2: SUBSTANTIAL INTERFERENCE
The interference must relate to C’s use or enjoyment of the land
Hunter v Canary Wharf - not sufficient interference
The inference must be indirect (direct = trespass)
eg: noise, smell, smoke…
Fearn v Tate Gallery - visual intrusion was enough to amount.
Cannot claim for personal injuries.
KEY ELEMENT 3: INTERFERENCE IS SUFFIECNTLY SERIOUS TO BE UNLAWFUL
It must be considered whether the acts complained of were:
Part of the ordinary use and occupation of land
Is D making more than a common and ordinary use of land?
→ what amounts to ordinary use depends on the character and nature of the area.
Sturges v Birdgman - Noise and vibrations from industrial equipment in a residential area was a nuisance.
Laws v Florinplace - example of affecting the ordinary comfort of human existence.
Special sensitivity of C is not relevant:
Robinson v Kilvert
Network Rail v Morris - damage was extraordinary and unforeseeable.
Whether they are conveniently done, with proper consideration for the interests of neighbors.
→ length and degree of nuisance must be considered.
De Keyser’s Royal Hotel v Spicer Bros - building at night was unreasonable
Christie v Davey - malicious action is more likely to be considered unlawful.
Fearn v Tate - no defense to claim to say that D is using their land reasonably that is beneficial to the public.
Defenses to private nuisance
Prescription
If D has carried out the activity causing the nuisance for at least 20 years and C has been aware of this and not complained, D has the defense of “prescriptive right” to carry out the activity.
Sturges v Bridgman - D cannot argue he is only suffering a nuisance because they moved into an area or moved closer to it.
Coming to a nuisance is not a defense
Statutory authority
An action will fail if the nuisance is created by a public body acting under statutory authority.
Allen v Gulf Oil - C could not sue in a nuisance about noise and fumes from an oil refinery as the refinery was built under an act in parliament.
Local authority planning permission does not mean that the activity in question is not a nuisance, it must be looked at whether D is making more than ordinary use of land if it has changed the character of the neighborhood
Gillingham BC v Medway
Remedies in private nuisance
Injunction
→ prohibits or controls and activity
Kennaway v Thompson - partial injunction that number of races limited
Damages
Coventry v Lawrence shows courts may be less willing to grant an injunction esp. if planning permission was granted for the activity in question.
Physical damage: for damage to land, buildings/goods/not for injury
Loss of amenity: damages awarded to reflect reduction in value of land or loss of business
Punitive damages: extra money awarded because D disapproves D’s behavior.
Abatement
→ C can take reasonable steps to deal with the nuisance himself.
Rylands v Fletcher
→ define: A person who brings and keeps on his land a dangerous thing in extraordinary and unusual circumstances is strictly liable for damages caused by its escape.
It is a strict liability tort, meaning D will be liable for the escape even though there is no fault or negligence on his part.
Lord Carins states “If a person brings , or accumulates, on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril, if it does escape, and cause damage, he is responsible, however careful he may been.”
KEY ELEMENT 1: PARTIES
Transco v Stockport - C must have a legal interest in the land to pursue the claim.
Rylands v Fletcher - D must be someone who has control over the land on which the dangerous thing is stored.
KEY ELEMENT 2: ACCUMULATION
Giles v Walker - there must be a brining onto the land, it cannot be something that is naturally present.
KEY ELEMENT 3: DANGEROUS THINGS
The thing brought must be dangerous and likely to damage if it escapes, it can include things not inherently dangerous such as water, provided it poses an exceptional risk if it escapes.
Hale v Jennings - dangerous
Transco v Stockport - did not pose expectational risk
Stannard v Gore - Fire spreading does not give rise to liability unless it is the thing that fuels the fire escaping. (LMS International v Styrene)
KEY ELEMENT 4: NON-NATURAL USE OF LAND
Rickards v Lothian defines non natural use as “some special use bringing with it increased danger to others and must not merely be the ordinary use of land.”
Transco v Stockport - use was not extraordinary and unusual
Cambridge Water v Eastern Countries Leather - even if activities benefit the public they can still amount to non natural.
Rylands v Fletcher - storing unnatural amounts
KEY ELEMENT 5: ESCAPE
There must be an escape from land that D controls to land he does not control.
Rylands v Fletcher - water escaped
Read v Lyons - D was on premises so couldn’t count as escape.
KEY ELEMENT 6: DAMAGE
The escape must cause reasonably foreseeable damage to adjoining land.
Cambridge Water v Eastern Countries Leather - too remote
DEFENSES
Act of a stranger - Perry v Kendricks - D not liable if escape caused by the deliberate unforeseen act of a stranger, who D has no control over.
Act of God - Nichols v Marsland - natural events so enormous that it cannot be foreseen or guarded against.
Statutory Authority - Green v Chelsea Waterworks - not liable if escape occurs during activities authorities by act of parliament.
Volenti non fit injuria - Peters v Prince of Wales Theatre - no liability where C has consented to thing accumulated by D
Contributory negligence - C is party responsible for escape, reducing damages.
Vicarious liability
→ define: Vicarious Liability is a form of liability by which D is held liable for a tort committed by a third party.
The main purpose is to ensure the victim of tort is able to receive adequate compensation, as employers will often be better of financially. The employer is entitled to recover any compensation paid to C through a deduction in wages "(Civil Liability (contribution) Act 1978)
In order to be vicariously liable for a tort committed by another, a two stage test must be satisfied:
The relationship between the Defendant and tortfeasor must be one of employment or “akin to” employment.
There must be a close connection between the wrongful conduct and acts the tortfeasor was authorized to do so that it can fairly and properly be regarded as done by the tortfeasor in the course of their employment.
KEY ELEMENT 1: EMPOYEE RELATIONSHIP
Barclays Bank v Various Claimants - employers not liable for independent contractor, contractor must be individually sued.
Test for employee status: Control Test
Whether and employer controls the way the job is done. (how, when to do work..)
Mersey Docks & Harbor Board v Coggins and Griffiths
Integration test
A worker will be an employee if his work is fully integrated into the business
Stevenson, Jordan and Harrison v Macdonald Evans - If a persons work is only accessory to the business that person is not an employee.
Economic reality test
Ready Mixed Concrete v Minster of Pensions - 3 factors must exist before worker can be classified as employee
Employee agrees to provide work or skill in return for a wage
Employee accepts that work will be subject to control of employer
All other considerations in contract are consistent with there being a contract of employment, rather than any other relationship.
Other questions such as:
Who bears chance for profit/loss, paid per job/contract description/ownership of tools
Akin to employment test for non traditional employment relationships
→ may be held liable for a person who is not technically their employee provided the relationship between them is sufficiently akin to employment.
Catholic Child Welfare Society v Various Claimants - relationship to members was sufficiently akin to one of employment based on hierarchical structure of the institute.
Sufficiently close connection between institutes relationship with members and the abuse carried out while perusing their mission.
Cox v Ministry of Justice - prisoners work was an integral part of the prison activities.
Barry Congregation of Jehovah’s Witnesses - Carrying out integral work on behalf of employer. Hierarchal structure.
KEY ELEMENT 2: CLOSE CONNECTION TEST
→ Wrongful act must be closely connected with acts that the tortfeasor was authorized to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the employment.
Employee acting negligently
Century Insurance v Northern Ireland Transport Board -Employer can be liable for employee doing job badly.
Acting against orders
If an employee is doing his job but acts against orders in the way they do it, the employer can still be liable if those actions further business.
Limpus v London General Omnibus - Negligent act helped business
Twine v Beans Express - employer gaining no benefit
Employee acting on a “frolic” of their own
If employee causes damage at a time or place outside of work, or doing something that has nothing to do with their employment, employer will usually not be liable.
Hilton v Thomas Burton - took unauthorized break
Beard v London General Omnibus - no sufficient close connection
Criminal actions of an employee
Lister v Hesley Hall - actions so closely connected to employment that it was fair and just to hold employer liable.
Morrisons v Various Claimants - close connection will not be satisfied simply bc the employment provides the tortfeasor with an opportunity to commit wrongful conduct.