Tort Flashcards

Question

in what situations may a D be able to exclude their liability?

Answer 1

- exclusion notice 1. REASONABLE STEPS must have been taken to bring the exclusion notice to the claimant’s ATTENTION before the tort was committed. 2. The wording of the notice must COVER THE LOSS suffered by the claimant. - the Ds ability to exclude liability is further limited by UCTA + CRA 2015 - cant exclude for death or personal injury

Answer 2

- Were parties of equal bargaining power - Advice - would it have been reasonably practical to source advice from elsewhere - How difficult is task being undertaken for which liability is being excluded? - What are practical consequences of taking into account advice?

Answer 3

- general position is no - usually lack of a sufficiently proximiate relationship

Answer 4

* a medically recognised psychiatric illness; or * a shock- induced physical condition (such as a miscarriage or heart attack). cases of simple worry and anxiety will not suffice note these are the same requirements for primary and secondary victims

Answer 5

A primary victim: a) was in the ACTUAL AREA of danger; or b) REASONABLY BELIEVED that he was in DANGER The requirements for a duty of care to be owed to a primary victim are: i) primary victims are owed a duty of care in relation to their pure psychiatric harm, provided the risk of PHYSICAL INJURY FORESSEABLE ii) for primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.

Answer 6

a) WITNESSES INJURY TO SOMEONE ELSE; or b) FEARS FOR THE SAFETY of another person Alcock control mechanisms: 1. It must be REASONABLY FORSEEABLE that a person of NORMAL FORTITUDE in the claimant’s position would suffer a psychiatric illness. 2. The claimant must have a close relationship of LOVE AND AFFECTION with the person who is endangered by the defendant’s negligence. - parent/ child, husband/ wife and fiancé/ fiancée = presumption of close relationship of love and aff - if not in the above categories = must show relationship of love and aff - can adduce evidence to rebut the presumption 3. The claimant must be PRESENT AT THE ACCIDENT OR ITS IMMEDIATE AFTERMATH - through sight or hearing - not through third party 4. The claimant must SEE OR HEAR the accident, or its immediate aftermath, with their OWN SENSES - note, in Alcock, Mr Alcock saw the body 8 hours after the incident = wasnt classed as immediate aftermath

Answer 7

Alcock > some of the victims families watched the Hillsborough events unfold on TV but no one on the broadcast was identifiable = couldn't recover damages However, Alcock noted that a live television broadcast might be sufficient to render the tortfeasor liable to claimants in shock if the ‘impact of the simultaneous television pictures would be as great, if not greater, than the actual sight of the accident’

Answer 8

- treated as any other victim - primary and secondary victim tests

Answer 9

- to take reasonable steps to provide: 1. competent staff 2. adequate material 3. a safe system of work 4. a safe place of work - fails to meet standard of reasonable employer - same factors considered as in negligence (magnitude etc) - the duty is owed to each individual employee > Paris v Stepney Borough Council (claimant had one eye, D shouldve done more to protect the good eye) *alternative cause of action* - health and safety at work act - breach is criminal offence - regulations may act as guidance

Answer 10

it is a non-delegable duty so if a contractor negligently services a machine and the machine explodes injuring an employee, the employee's course of action is against the employer (but the employer might then make a claim against the contractor)

Answer 11

- duty ARISES WHERE AN EMPLOYER KNOWS OR OUGHT TO KNOW ABOUT THE RISK A PARTICULAR WORKER IS POSING TO FELLOW WORKERS - the risk to the employee could be psychological as well as physical

Answer 12

- where the employer doesn't provide an adequate material and should've done - and where the employer does provide materials but they are not adequate *alternative cause of action:* - Employer’s Liability (Defective Equipment) Act - The injured employee needs to establish: * fault on the part of the third party (manufacturer or supplier) * causation (ie that the fault of the third party caused the employee’s injury).

Answer 13

- adequate training - employee supervision - monitoring operation of equipment. - duty not just to devise safe system > duty to ensure compliance - discpliniary action against those who dont comply - ongoing and continuous obligation

Answer 14

- overlap with OLA 1957 - common law duty is more onerous i) non-delegable ii) applies regardless of where the employees are at work - assess all premises employees are sent for work

Answer 15

- stress injury must be reasonably forseeable: I) nature + extent of work II) signs from employee themselves - entitled to take what employee says at face value (e.g. if they say they are fine > injury not reasonably forseeable) - stress must be coming from work (not personal reasons)

Answer 16

complete defence preventing the claimant recovering at all for the defendant’s breach of duty

Answer 17

1. that the claimant had FULL KNOWLEDGE OF THE NATURE AND EXTENT OF THE RISK; and - simply knowing the risk exists = not sufficient 2. that the claimant WILLINGLY CONSENTED to accept the risk of being injured due to the defendant’s negligence - freely consented - knowledge is not consent

Answer 18

RTA prevents volenti being raised by a driver against their passenger in any motor vehicle claim where there is compulsory insurance.

Answer 19

- the defence of consent very rarely succeeds in these circumstances - an employee acts under a duty and therefore has no real freedom of choice when carrying out a dangerous task requested by the employer - if they do not carry out the task, they risk losing their job - Smith v Baker > just because the claimant had continued to work, knowing the risks involved, it did not mean he had consented in law to the risk

Answer 20

- a rescuer usually doesn't act voluntarily - they often act under moral compulsion - rescuers will NOT be said to have CONSENTED to the risk of injury if: 1. they were acting to rescue persons or property ENDANGERED BY DS NEGLIGENCE; and 2. they were acting under a COMPELLING LEGAL, SOCIAL OR MORAL DUTY; and 3. their conduct in all the circumstances was REASONABLE and A NATURAL AND PROBABLE CONSEQUENCE OF DS NEGLIGENCE

Answer 21

1. carelessness on the claimant’s part; and 2. that carelessness has contributed to the claimant’s damage.

Answer 22

- partial defence - the claimant's damages are reduced to such extent as the court thinks JUST AND EQUITABLE having regard to the claimant’s share in the responsibility for the damage - when making this assessment the court will take into account: * CULPABILITY, ie the relative blameworthiness of the parties; * CAUSATION, ie the extent to which the claimant’s carelessness has caused or contributed to the loss suffered. - the relevant issue is not who caused the accident, but WHO CAUSED THE DAMAGE

Answer 23

*this scale is also applicable to a claimant's failure to wear a crash helmet*

Answer 24

- passengers who accept lifts from a driver whom they know to be drunk, can expect to have their damages reduced - this applies even where the claimant was too drunk to appreciate the drivers intoxication but knew that by going out drinking together, they would later be driven home by the driver when the driver would be drunk

Answer 25

- only if at an age where it would be reasonable for them to tkae precautions for their own safety - the test = whether an ordinary child of the claimant’s age would have taken more care for his safety than the claimant did - if v young child = unlikely to find CN - the child's damages cannot be reduced to account for the negligence of the parents - (D could seek contribution from the parents under the Civil Liability (Contribution) Act)

Answer 26

* a rescuer will be judged against the STANDARD of the REASONABLE RESCUER * allowance is made for emergency situations * Only if a rescuer has shown a ‘WHOLLY UNREASONABLE DISREGARD FOR HIS OR HERS SAFETY’ is there likely to be a finding of contributory negligence.

Answer 27

courts will be less likely to make a finding of CN against a worker in a mine who is consistently exposed to danger so may take less care, than an office worker

Answer 28

- were the actions of the D reasonable in the 'agony of the moment' given the situation they are in?

Answer 29

- C involved in illegal enterpise at the time they were injured - complete defence - must be v. close connection between the illegal activity of the claimant and the injury which they suffer - it would be contrary to public policy to allow the C a remedy

Answer 30

The aim of damages in tort is to put the claimant in the same position they would have been in if the tort had not been committed. This means that the claimant should be no worse off because of the occurrence – but also no better off - note the claimant's duty to mitigate their losses

Answer 31

SPECIAL: - capable of being calculated before trial e.g. loss of earnings GENERAL - not capable of being calculated precisely - left to the court to determine e.g. pain, suffering and loss of amenity + losses suffered after trial

Answer 32

pecuniary losses - calculated in monetary terms non-pecuniary losses - not wholly money based - loss of amenity - pain and suffering

Answer 33

- covers past, present and future pain - physical and mental anguish - the fear of future surgery, etc - covers claimant’s anguish of knowing that their life expectancy had been shortened because of the accident - If a claimant was unconscious = not able to claim

Answer 34

- loss of enjoyment of life - active prior to accident > greater damages - can claim if unconscious

Answer 35

looks at the facts in each individual case

Answer 36

because they are not capable of being calculated precisely

Answer 37

special damages - already incurred general damages - yet to be incurred

Answer 38

when the claimant has received the medical treatment from the NHS *note - a claimant who is treated by the NHS free of charge cannot recover what it would have cost them to have private treatment*

Answer 39

- a claimant can choose to pay for private medical treatment - this will not be seen as a failure to mitigate losses

Answer 40

- special damages - NET EARNINGS, after deduction of tax, national insurance contributions, and pension contributions - if the claimant REGULARLY EARNED OVERTIME AND BONUSES, these should be included in the calculation - any PERKS of the job which the claimant received, eg a company car, reduced rate mortgage, share options, should be included in the calculation.

Answer 41

1. multiplicand - gross salary - tax, NI + pension = multiplicand - take into account likely promotions - inflation > not accounted for - C can account for inflation by investing their damages 2. multiplier - court then needs to calculate how long the C will lose this money - if not expected to work again = this period will be based on the claimant’s pre- accident working life expectancy (eg. retirement)

Answer 42

if they received their full loss of future earnings at the date of the trial this is because they would be able to invest that whole lump sum and allow it to earn interest

Answer 43

- A sum of money received today is worth more than the same sum received in the future due to inflation - it is also assumed the C will invest the lump sum they receive > so to account for that > reduction - DR discounts damages for future losses to their present value - DR is applied to the multiplier (figure of guture financial losses)

Answer 44

- still calculate loss of earnings after C is expected to die - deduction made in that period for what C wouldve spent on themselves: I. 25% for a person who is married with dependent children II. 33% for those who are not married.

Answer 45

- there is nothing that prevents the court from awarding a child damages for future loss of earnings but this will be difficult to calculate - different approaches the court might take: i) consider what the child’s parents earn and assume the child would reach a similar level ii) take the national average earnings and base the child’s earnings on those figures

Answer 46

- the need for the services must follow from the injury caused by the defendant’s negligence - paid for professional nursing care > must show the costs were REASONABLE AND IN LINE WITH THE USUAL MARKET RATE for such services - where the C's spouse or other relative > starting point is the loss of earnings suffered by the carer - cannot exceed the commercial rate for providing the services

Answer 47

- yes - any reasonable loss incurred by the claimant as a result of the accident can be recovered

Answer 48

* insurance payments; * ill- health pensions; * charitable payments

Answer 49

- C still claims state benefits - the amount of these state benefits are deducted from the claimant’s damages - then D pays the amount back to the state *no benefits are deductible from the claim for pain and suffering and loss of amenity*

Answer 50

PROVISIONAL DAMAGES AWARD At the trial, the court will assess damages on the basis that Mandeep will not lose the sight in her eye. The judgment will specifically provide that, in the event that Mandeep does lose the sight in her eye in the future, she will be entitled to further damages.

Answer 51

no - in some circumstances they can be watch out for an SBAQ saying they can 'never' be awarded periodically

Answer 52

- no new cause of action - existing cause of action continues after death - claim survives for the benefit of the estate - claim survives against a Ds estate - the receipt of insurance money payable on death, or a lump sum payment from a pension nor any funds the estate had to pay out on death = do not reduce the damages claimed by the estate - can make a claim for funeral expenses if paid for by the estate

Answer 53

Non- pecuniary losses * Pain and suffering and loss of amenity > end at date of death Pecuniary losses * Damage to property, eg clothes or a car damaged in an accident. * Medical and other expenses > end at death * Loss of income up to the date of death. - If the deceased claimant leaves dependent relatives, they would be compensated by a claim under the Fatal Accidents Act 1976

Answer 54

1. where the claimant dies before any proceedings have been brought against the D, PRs will be entitled to bring a claim on the deceased's behalf 2. if the claimant dies during proceedings, the PR can continue the proceedings on the deceased's behalf

Answer 55

- allows dependants to sue for the death of the person on whom they were dependent - claimants have to be able to show that, had the deceased survived, the deceased would have been able to bring a claim against the defendant themselves - any defence that would defeat or reduce damages will have same effect

Answer 56

1. A claim on behalf of dependants for loss of dependency. 2. A claim for damages for bereavement – limited to certain persons only. 3. A claim for funeral expenses – if paid by the dependants.

Answer 57

1. they must FALL WITHIN THE CLASS OF DEPENDENTS as listed in the 1976 Act - definitive list: - current and former married spouses/ civil partners - cohabitees who have lived together for at least two years - parents, children, siblings; and 2. they must have been actually FINANCIALLY DEPENDENT ON THE DECEASED - note ‘pecuniary benefit’ does not simply mean provision of money - dependants can claim for the cost of replacing services which were provided by the deceased e.g. child care, DIY, gardening and housework - remember this is for future losses (as C is deceased)

Answer 58

MULTIPLICAND - deceased’s net annual earnings minus what they would've spent on themselves - 25% for a married person with children and 33% for a married person without children - if deceased's children were no longer dependent on them at the time of death = 33% note the deceased may have contributed to the family's wealth in other ways than the salary e.g. perks of the job or child care which will now need to be paid for - these contributions need to be taken into account MULTIPLIER - period of loss to the dependant (the period for which the dependency might have continued) - the longest possible period of dependency would be when the deceased wouldve stopped working - if child = the period of dependency would be expected to cease when the child reached the age of 18 or ceased full- time education - again, take the period of dependency and turn it into a multiplier via the ogden tables

Answer 59

* damages for a dependant spouse do not take into account their remarriage or prospects of remarriage; * the fact that dependants are likely to inherit money from the deceased (under a will or on intestacy) is not to be taken into account.

Answer 60

1. husband/wife/CP 2. the parents (or mother if illegitimate) of a minor who was never married/in CP 3. the cohabiting partner of the deceased, who: (a) was living with the deceased in the same household immediately before the date of the death; and (b) had been living with the deceased in the same household for at least 2 years before that date; and (c) was living during the whole of that period as the wife or husband or civil partner of the deceased. note - children not on the list

Answer 61

- £15,120 - fixed sum - only one award can be made per death so where both parents are entitled to claim, the award is split between them

Answer 62

- yes can make a claim where the funeral expenses have been paid by a dependent - via the Fatal Accidents Act 1976 (in addition to other claims via the act e.g claim for damages for bereavement)

Answer 63

the employer is liable in addition to (not instead of) the employee they are jointly liable the claimant can sue both or either

Answer 64

1. The worker must be an employee (or in a relationship akin to employment). 2. The employee must have committed a tort. 3. The employee’s tort must have been committed in the course of his employment.

Answer 65

EMPLOYEE: - carries out work just for one person (the employer) - receives a wage but it is the employer who has the business interest INDEPENDENT CONTRACTOR: - carries out work for several people - is in business on their own - employer cannot be held vicariously liable for their actions

Answer 66

in the course of the employee's employment usually amounts to: i) wrongful acts the employer has authorised ii) wrongful and unauthorised modes of carrying out an authorised act

Answer 67

employer was vicariously liable the court felt that as the man was protecting his employer’s property, he had implied permission to push away the thief

Answer 68

was not acting in the course of his employment the retaliation was a personal act not authorised or connected with his employment

Answer 69

in the course of his employment vicariously liable

Answer 70

the employee is doing his job (pushing the wheelbarrow) but in a careless way likely to fall within course of employment and be vicariously liable

Answer 71

- where a prohibited act is done by the employee to further the employer's business (despite the employer prohibiting it) the act is likely to fall within the course of employment so vicariously liable

Answer 72

- an employer could be vicariously liable for an employee's intentional wrongful acts, even if those acts were committed for PERSONAL REASONS AND NOT FOR THE BENEFIT OF THE EMPLOYER - the key factor was the "CLOSE CONNECTION" between the employee's role and the wrongful act

Answer 73

- need to consider: i) geographical divergence ii) departure from the task set the greater the degree of departure from one or both of these the more likely the employee will be off on a frolic of their own, and thus the employer will not be VL

Answer 74

- if an employer (or their insurer) pays compensation for a tort for which they are vicariously liable, the employer has a common law right to seek indemnity from the employee who actually committed the tort - there is also now a similar right contained within the Civil Liability (Contribution) Act 1978 - However, employers’ liability insurers have entered into an informal agreement not to pursue such claims for an indemnity unless there is evidence of collusion or wilful misconduct on the part of an employee.

Answer 75

no - it is a principle under which people can be liable for the torts of other people

Answer 76

1957 = visitors (if you look at a 7 sideways it's a V) 1984 = trespassers

Answer 77

- 1957 act 1. occupier 2. visitor 3. suffered loss due to the state of the premises 4. occupier failed to take reasonable care for the visitor’s safety.

Answer 78

- occupier = someone with ‘a sufficient degree of control over premises’ - there can be more than one occupier for the same premises - independent contractor, working on another person’s premises, could also constitute an ‘occupier’ while on the premises (along with the owner of the premises), having the required degree of control over the area where it is working

Answer 79

- persons who have express or implied permission to be on the occupier’s land - this includes persons who enter under the terms of a contract and persons who enter in order to exercise any right conferred by law (e.g. police officer who enters a premises with a search warrant) - a visitor who exceeds their express or implied permission will become a trespasser

Answer 80

trespasser due to the sign

Answer 81

to take SUCH CARE AS IS REASONABLE in all the circumstances to see that the VISITOR IS REASONABLY SAFE in using the premises for the PURPOSE for which PERMITTED TO BE THERE note > the duty is to ensure the visitor is safe, not the premises are safe - the occupier must meet the standard of the REASONABLE OCCUPIER (considering all the circumstances) - the court will consider the following factors in deciding this: * nature of the danger; * purpose of visit; * seriousness of injury risked; * magnitude of risk; * cost and practicability of steps required to avoid the danger; * how long the danger had been on the premises; * any warning of the danger; * type of visitor

Answer 82

1. CHILDREN - require a higher degree of care - they cannot be expected to appreciate dangers which would be obvious to an adult - the occupier must do even more where the danger is an allurement to children - occupier has discharged their duty, if they make a premises safe for a child whom they reasonably expected to be accompanied by an adult 2. SKILLED VISITORS - an occupier can reasonably expect them to appreciate and guard against any risks which are part and parcel of their job - this has the effect of lowering the standard of care

Answer 83

- adequate warning - the warning given must be sufficient enough to enable the visitor to be reasonably safe (question of fact) - need to consider: i) the nature of the warning - was it a general warning or specific to the danger ii) the nature of the danger - was it hidden or obvious iii) the type of visitor - a written warning may not be sufficient for children - there is no need to warn visitors of an obvious danger (eg the danger of drowning in a pond would be obvious to an adult visitor) - also note the distinction between a warning sign and an exclusion sign

Answer 84

- if in all the circumstances, the occupier had ACTED REASONABLY in: 1. ENTRUSTING the work to an independent contractor; and 2. had taken such steps (if any) as they reasonably ought in order to satisfy themselves that the contractor was COMPETENT; and 3. had taken such steps (if any) as they reasonably ought in order to satisfy themselves that the WORK HAD BEEN PROPERLY DONE - e.g. if the work completed is very technical in nature, the occupier cannot be reasonably expected to check it themselves - the occupier is not liable (instead the visitor must look to the contractor for recompense)

Answer 85

1. consent (voluntary assumption of risk/volenti non fit injuria) - e.g. if there is a warning - C must know precise risk + willingly accept 2. exclusion of liability - r. steps to bring to attention - appropriate wording - UCTA / CRA (applicable if business premises) 3. contributory negligence - partial defence

Answer 86

- people other than visitors - does not matter if the trespasser doesnt know they are trespassing - can enter as a visitor and become a trespasser

Answer 87

- does not arise automatically, like it does with the 57 act an occupier must: 1. be aware of the danger or has reasonable grounds to believe that it EXISTS 2. know or has reasonable grounds to believe that the TRESPASSER IS IN THE VICINITY OF THE DANGER concerned or that they may come into the vicinity of the danger; and 3. be REASONABLY EXPECTED to offer the other SOME PROTECTION against the risk *in deciding whether it wouldve been reasonable for an occupier to provide the trespasser with some protection, the court will consider: i) the nature and extent of the risk ii) the type of trespasser iii) cost and practicality of precautions - the duty is only owed in respect of the injury > doesnt cover damage to the trespasser's property

Answer 88

* nature of the danger (hidden/obvious) * age of the trespasser. * nature of the premises (private house / railway line). * extent of the risk * cost and practicability of precautions * nature and character of the entry (eg burglar, child trespasser or adult inadvertently trespassing). * gravity and likelihood of injury. * foreseeability of the trespasser

Answer 89

- yes, so long as the sign adequately warns of the danger - a written notice is unlikely to be sufficient for children - where a warning would be inadequate to protect a trespasser from danger, an occupier should therefore put an obstacle (eg a barrier which is too high for a child to climb) round the danger to prevent the trespasser coming into physical contact with the danger - same principles regarding the higher standard of care for the protection of children in the OLA 1957 are applicable here

Answer 90

- unlike the 57 act, the 84 act is silent on the exclusion of liability - unclear

Answer 91

illegality - it would thwart Ps intention to provide a safety net of protection to trespassers

Answer 92

- under the narrow rule in Donoghue - the claimant must show: 1. the defendant is a ‘MANUFACTURER’ - include any person who works in some way on a product before it reaches the consumer - includes repairers, installers and on some rare occasions suppliers - suppliers = if the circumstances are such that they ought reasonably to inspect or test the products which they supply (eg because the manufacturer has asked them to do so) or if they know of the defect/danger 2. the item causing damage is a ‘PRODUCT’ 3. the claimant is a ‘CONSUMER' - NOT ONLY THE ULTIMATE USERof the product, but also anyone whom the defendant should reasonably have in mind as likely to be injured by the defendant’s negligence 4. the product reached the consumer in the form in which it left the manufacturer with NO REASONABLE POSSIBILITIY OF INTERMEDIATE EXAMINATION (ie. telling someone to test a product) - a mere opportunity or possibility of intermediate examination will not be enough to exonerate a manufacturer - manufacturer must believe there is a likelihood of such examination taking place - if the only loss is the defective quality of the product itself, the reduction in value of the product, or the cost of repairing the defect or of replacing the product would not be covered by the duty of care (as it is pure economic loss) - manufacturer will be able to discharge duty with adequate warning

Answer 93

1. consent / volenti non fit injuria - knowledge of a risk is not on its own enough to amount to consent - difficult to prove 2. exclusion of liability - cant exclude death/personal injury under UCTA/CRA where liability arises in the course of business/trade - liability to non-consumers can be excluded if reasonable (UCTA) and fair (CRA) 3. contributory negligence

Answer 94

- a statutory tort - strict liability (dont need to prove fault of D) - provides additional course of action to negligence (but remember cant recover twice for the same loss) - ANYONE who has suffered damage caused by a defect in a product can sue

Answer 95

* claims for death and personal injury are without limit * Damage to private property MUST EXCEED £275 before a claim for it can be brought. * Damage caused by a defective product to BUSINESS PROPERTY = OUTSIDE SCOPE of the CPA 1987. * The cost of repairing or replacing the defective product itself is not recoverable. This is regarded as being pure economic loss.

Answer 96

- UNSAFE - when looking at the level of safety people should reasonably expect under the CPA, the following should be considered: * the whole get- up and presentation of the product (including packaging, instructions, warnings); * what the expected use of the product is; * the age of the product in question.

Answer 97

1. The producer of the product (ie the manufacturer) - product means the finished product and any component 2. An ‘own- brander’ (holds themselves out as being the producer) 3. An importer 4. A forgetful supplier - only where they are unable to meet a victim’s request to identify any of the people involved in the chain of supply

Answer 98

- liability is strict under the CPA 1987 in that the defendant will be liable without proof of any fault on his part - under the narrow rule in Donoghue v Stevenson, the claimant has to establish that the defendant had failed to reach the standard of care of the reasonable person in their position in order to prove breach of duty (and therefore negligence) on the defendant’s part.

Answer 99

1. The defect was attributable to COMPLIANCE WITH LEGAL REQUIREMENTS - only if the defect was an inevitable result of compliance 2. The defendant DID NOT SUPPLY the product to another e.g. someone breaks in 3. The defendant SUPPLIED the product OTHERWISE THAN IN THE COURSE OF BUSINESS e.g. friend selling to friend 4. The defect DID NOT EXIST when the D SUPPLIED the product 5. A manufacturer of COMPONENT PARTS is not liable for a defect in the finished product which is wholly attributable to the design of the finished product or to compliance with the instructions given by the manufacturer of the finished product 5. DEVELOPMENT risks - state of knowledge of producers didnt allow them to spot such a defect - the knowledge = knowledge accessible anywhere in the world 6. CONTRIBUTORY CANNOT EXCLUDE LIABILITY VIA EXCLUSION CLAUSE

Answer 100

- res ipsa DOESNT APPLY TO PRODUCT LIABILITY CASES - but the court are prepared to infer a breach - if C can show some facts that may indicate something went wrong in the manufacturing process, the courts have been willing to infer a breach of duty - D can rebut that inference by providing an alternative explanation

Answer 101

‘unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it’

Answer 102

three methods of interference: (1) nuisance by ENCROACHMENT on a neighbour’s land; (2) nuisance by INDIRECT PHYSICAL INJURY to a neighbour’s land; and (3) nuisance by interference with a neighbour’s QUIET ENJOYMENT of his land - materially interferes with ‘ordinary comfort’ - loss of prospect (a view) is not an interference - disruption to TV signal = not interference - unlawful = ‘substantial and unreasonable’. - balance the right of one person to do what they lawfully are entitled to on their land against their neighbour’s right to enjoy their land free from interference - encroachment onto a neighbour's land = unlawful without any further consideration required

Answer 103

'MAC DEEP' 1. duration and frequency 2. excessiveness of conduct 3. extent of harm (ie impact on the claimant) - assessed subjectively - physical damage = likely to be considered excessive (unless trivial) 4. character of the neighbourhood - only relevant to personal inconvenience - activities in breach of planning permission will not be considered when looking at locality 5. public benefit - only relevant when considering injunction 6. malice - wont be considered reasonable 7. abnormal sensitivity - however, if the claimant can prove the interference would be unreasonable even to a normal user, they can then recover for all their loss even if greater (due to their sensitivity) than the normal user

Answer 104

- someone with the right to exclusive possession of the land (incudes tenants) - children of the owner cannot - hotel guests cannot

Answer 105

1. creator of the nuisance (remains liable even if the land is now owned by someone else). 2. occupier of the land (whether or not they created the nuisance) - usual defendant 3. landlord - general rule is tenant is defendant as they are in the occupier but some circumstances where the landlord could be liable such as where they have expressly or impliedly authorised the nuisance (or where they ought to have known) 4. an occupier that continues a nuisance created by a visitor

Answer 106

- physical damage to land or buildings - and consequential losses - e.g. loss of profits where a nuisance prevents a business from operating normally - quiet enjoyment of the land NOT RECOVERABLE IN PRIV N: - physical injury - injury to personal belongings

Answer 107

- causation > unlawful interference caused the damage - A defendant can still be liable in private nuisance even if the defendant has exercised reasonable care. (THE RELEVANT ISSUE IS NOT WHETHER THE D'S ACTS ARE REASONABLE, BYT WHETHER THE USE OF THE LAND IS REASONABLE) - remoteness > same test for negligence > whether the kind of damage which occurred was reasonably foreseeable to someone in the defendant’s position at the time the relevant acts were done

Answer 108

1. prescription - if the defendant can show that they have been continuing the nuisance for a period of at least 20 years against the claimant 2. statutory authority - D must show that the nuisance was an inevitable result of doing what the statute authorised 3. contributory negligence 4. consent 5. act of God - defendant will not be liable in nuisance unless they adopt or continue the nuisance 6. necessity * a situation of necessity exists because of an IMMINENT DANGER TO LIFE OR LIMB (or in very exceptional circumstances property) and * that the defendant’s actions were REASONABLE in all the circumstances - cannot be used if the circumstances giving rise to necessity were of the defendant’s own making e.g. where D was negligent

Answer 109

1. claimant comes to a nuisance - i.e. it was there when the claimant bought the property = wont be successful - however, where a claimant builds on their land or changes the use of the property after the defendant had initially commenced the activity then the claimant’s claim for nuisance could fail 2. public benefit - cant be argued as a defence - may be relevant to injunctions 3. contributory actions of others - e.g. There are many stalls at a fair which have music playing. The combined effect of the music from all the stalls is to create a nuisance. Each stallholder who has music playing will be liable in nuisance. 4. planning permission - PP granted by local authorities does not legitimise nuisance - but if the PP stipulates noise levels + times > may be relevant

Answer 110

1. DAMAGES - any loss the C has suffered at the date of trial - limited scope for damages for future losses - physical damage = cost of repairing the damage or, if this is not possible, the loss in value of the land in question - personal discomfort = valued by looking at the loss of amenity value of the land in question (ie the land with the nuisance being worth less than the land without the nuisance) 2. INJUNCTION (equitable remedy - discretionary) i) prohibitory injunction > stops D from doing something ii) mandatory injunction > D to take some positive action to rectify the consequences of what they have done iii) A ‘quia timet ’ injunction > granted before damage occurs - C has to show: * they are ALMOST CERTAIN TO INCUR DAMAGE without the injunction; and * such damage is IMMINENT; and * the defendant WILL NOT STOP their course of conduct WITHOUT the order of the court.

Answer 111

- only where damages alone are insufficient - future interferences

Answer 112

where... - harm suffered by applicant is small - damages would be sufficeint - would be oppressive to the D to grant the injunction - public interest may be relevant (e.g.the employees of the defendant losing their jobs if an injunction is granted) - if the nuisance has been previously authorised by PP > may influence the court to conclude that it is in the public benefit that the claimant is awarded damages instead

Answer 113

- two principal remedies = damages + injunction - abatement also remedy - involves the removal of the interference by the victim. - the victim must, however, normally give prior notice to the wrongdoer, except in an emergency or where the nuisance can be abated (removed) without entering the wrongdoer’s land - whatever is removed needs to be returned to the wrongdoer - basically self help

Answer 114

1. The defendant brings onto their land for their own purposes something LIKELY TO DO MISCHIEF - need not be dangerous in itself but must be capable of causing damage if it escapes 2. IT ESCAPES - substance/item causing damage must actually move from the defendant’s premises to a place outside the defendant’s occupation or control 3. which represents a NON-NATURAL use of land (question of fact) 4. it causes FORSEEABLE DAMAGE of the relevant type.

Answer 115

1. escape by an unforeseeable act of a stranger 2. escape caused by an ‘act of God’ which could not have been reasonably foreseen 3. statutory authority 4. consent (voluntary assumption of risk) 5. contributory negligence

Answer 116

- An act or omission endangering life, health or comfort of the public - or obstructs the public in exercise or enjoyment or rights. 1. conduct that MATERIALLY AFFECTS THE REASONABLE COMFORT AND CONVENIENCE of a class of people - vs private nuisance = indviduals 2. the C HAS SUFFERED PARTICULAR HARM - over and above that suffered by the public at large

Answer 117

option B is the best answer because the client will not have a claim in contract or in negligence, but he may have a claim under the Consumer Protection Act 1987. The washing machine (which will include its packaging) is a defective product for the purposes of the CPA 1987, as it is not safe according to what consumers generally are entitled to expect (s.3 CPA 1987). A is not the best answer because on the facts it seems the manufacturer has taken all reasonable steps therefore precluding a claim in negligence.

Answer 118

option B is correct - most people wont be in the scope of employment when travelling to work

Answer 119

B > IT IS THE TYPE OF HARM THAT MUST BE REASONABLY FORSEEABLE

Answer 120

correct answer is A B is wrong because the man did not hold himself out as being a professional tree surgeon

Answer 121

They will be in breach if their actions fell below the standard of the reasonable doctor, UNLESS THEY CAN SHOW THAT A RESPONSIBLE BODY OF DOCTORS WOULD SUPPORT THE USE OF THE EXPERIMENTAL DRUG. Bolam established the principle that a defendant would not be in breach if they acted in accordance with a practice supported by a REASONABLE BODY of professional opinion in that field.

Answer 122

the correct answer is B because only the claimant’s behaviour, namely the behaviour of the child herself, can be targeted with such defences. ie the mother's conduct wont affect what the child could recover

Answer 123

Option B is correct because the older man has not suffered pure psychological harm (PPH) as his PTSD has been caused by a physical impact. His PTSD would be compensated for as part of the pain and suffering for the physical injury. It is correct, however, the younger woman has suffered PPH and that she would not be compensated for this.

Answer 124

1. A divisible injury occurs when the harm caused to the claimant can be separated or divided into distinct parts, each of which can be attributed to a different cause. This means that the damages can be apportioned, and the claimant can receive compensation for the part of the injury caused by each defendant or incident. - apportionment > separate claims 2. An indivisible injury occurs when the harm caused is not separable into distinct parts, meaning the injury is ONE CONTINUOUS OR WHOLE HARM that cannot be broken down into separate components attributable to different causes. - joint and severally liable

Answer 125

Option C is the correct answer. Both the tenant and the landlord can be occupiers under the Occupiers’ Liability Act 1957 (OLA 1957) if they have the requisite control of the premises (Wheat v Lacon [1966]. They will both owe the customer a duty of care under OLA 1957 as the customer who is a visitor who has been injured due to the state of the premises. Neither the tenant or the landlord can rely on the notice as the Consumer Rights Act 2015 prohibits the exclusion of liability for death and personal injury. CAN HAVE MORE THAN ONE OCCUPIER IF MORE THAN ONE PERSON HAS A SUFFICEINT DEGREE OF CONTROL OVER THE PREMISES.

Answer 126

A is the correct answer. The public right to use the highway has been affected and the client has suffered particular harm, ie the personal injury. PUBLIC NUISANCE INCLUDES PERSONAL INJURY

Answer 127

B is the correct answer. Option A is not the best answer as a duty under the Occupiers’ Liability Act 1984 can extend to a non-visitor who is committing a criminal act. Also the occupier cannot use the defence of illegality because in Revill v Newbery [1996] 2 WLR 239 the Court of Appeal took the view that it would thwart Parliament’s intention if the defence of illegality were to be available in relation to liability under the OLA 1984. ILLEGALITY NOT AVAILABLE FOR OLA 84

Answer 128

Option A is correct. Option B is incorrect because while generally a child’s period of dependency ends when they reach the age of 18, it is extended where the child is in, or as here, expected to be in full-time education. PERIOD OF DEPENDENCY EXTENDS TO FULL-TIME EDUCATION EVEN IF THEY ARE 18

Answer 129

NEGLIGENCE - MCPI 1. manufacturer (can include repairers, importers, rare cases of suppliers) 2. product 3. consumer (anyone who comes in contact) 4. received how it left the manufacturer and no reasonable chance of intermediate exam - causation + remoteness - defences: consent, contributory, exclusion clauses (CRA/UCTA) CONSUMER PROTECTION ACT - strict liability - 4 categories of Ds (manufacturer, importer, own-branders, forgetful supplier) - damage caused by defect (unsafe) - anyone who comes into contact - no business property - personal property of over 275 - no exclusion clauses - more defences e.g. development risks, didnt supply etc IF INDEPENDENT CONTRACTOR = CANT BE CPA

Answer 130

1. duty of care 2. breach of duty 3. damage 4. causation 5. remoteness

Answer 131

1. how the D ought, in the circumstances, to have behaved - standard of care - reasonable person (objective) - skilled / under-skilled / children 2. whether Ds conduct falls below that standard - relevant factors e.g. magnitude of risk, seriousness of injury etc.

Answer 132

- yes - but very speculative - judge must be satisfied there is a real risk of C losing their job - judge must then try to put monetary value on that *not relevant where C will lose their current job but may be employed by someone else > just claim for loss of earnings*

Tort Flashcards

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