Law Notes - Contents PDF

Contents {#contents.TOCHeading} ======== [Negligence 2](#negligence) [Private nuisance 3](#private-nuisance) [Psychiatric injury 4](#psychiatric-injury) [Economic loss 5](#economic-loss) [Negligent misstatements 6](#negligent-misstatements) [Occupiers' liability 57 7](#occupiers-liability-57)...

Contents {#contents.TOCHeading} ======== [Negligence 2](#negligence) [Private nuisance 3](#private-nuisance) [Psychiatric injury 4](#psychiatric-injury) [Economic loss 5](#economic-loss) [Negligent misstatements 6](#negligent-misstatements) [Occupiers' liability 57 7](#occupiers-liability-57) [Occupiers' liability 84 8](#occupiers-liability-84) [Vicarious liability 9](#vicarious-liability) [Rylands v Fletcher 10](#rylands-v-fletcher) Negligence ========== In negligence, a person is only liable if they owe a duty of care, they breach this duty and the breach causes damages. For establishing a duty of care, Caparo Industries plc v Dickman which laid down a 3-part test. However, the Caparo test does not have to be applied in every case, instead the courts should look to existing duty situations or identify a duty of care through analogy (Robinson v Chief constable of West Yorkshire). **Apply** The test used by the courts to decide whether D has breached their duty of care is the 'reasonable man' test where D is judged by the standard of the reasonable person. In Blythe v Birmingham Waterworks, Alderson LJ defined breach of duty as "doing something which a reasonable person would not do or failing to do something which the reasonable person would have done". As it is an objective test, it does not take into account characteristics of D (Nettleship v Weston). \*For professional people, the Bolam test is used where D has to prove that he/she has the level of competence usually to be expected of an ordinary skilled member of that profession.\* Several risk factors are then considered by the judge such as the risk of harm (Bolton v Stone), special characteristics of C (Paris v Stepney), cost of precautions (Latimer v AEC ltd), and social utility. The factual rule of causation is the 'but for' rule which simply asks whether 'but for; the breach of duty by D, would the damage/harm to C have occurred (Barnett v Chelsea and Kensington HMC). **Apply** D will only be liable for damage that was reasonably foreseeable at the time of the breach (Wagon mound). If the kind of damage is reasonably foreseeable, it does not matter if it occurred in an unforeseeable way (Hughes v Lord advocate). Finally, the thin skull rule may be applied which is where you take your victim as you find them (Smith v Leech brain). **Apply** The aim of damages is to put C back to their original position before the tort was committed. Damages can be separated into special and general damages. Special damages is a quantifiable amount up to the date of the trail and include loss of earnings, medical expenses etc. General damages cannot be quantified and is divided into pecuniary, future earnings, and non-pecuniary which includes pain and suffering. **Apply** Private nuisance ================ The tort of private nuisance was defined in Winfield and Jalowicz as 'an unlawful, indirect interference with a person's use or enjoyment of land'. Different types of damage can amount to a private nuisance. These are, physical damage to Cs property (St Helens Smelting company v Tipping), loss of value to C's property and interference with C's enjoyment of his or her property (Dennis v MOD). To bring an action in private nuisance, C must have legal interest in the land effected. Under private nuisance, 'unlawful' means the interference must be unreasonable in the circumstances. **Apply** The first factors to consider are the locality and duration of the nuisance. The case of Sturges v Bridgeman stated, 'What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey' and the interference must be continuous. The next factors are malice and sensitivity of C. A deliberately harmful act will normally be unreasonable behaviour and considered a nuisance. The case of Sedleigh-Denfield v O'Callaghan set out the objective test of 'Would the hypothetical, reasonable, sensible, sober person find D's activities excessive?'. If it can be shown that C is particularly sensitive, then the action may not be a nuisance (Robinson v Kilvert). Finally, if D is serving a socially useful purpose may mean the court considers the actions reasonable. **Apply** D may be able to use the defence of; prescription, if the action has been carrying on for at least 20 years and there has been no complaints between the parties in that time, statutory authority, where D has been given statutory authority for the activity in question or planning permission which is not in itself a defence unless it changes the locality of the neighbourhood. **Apply** Damages or an injunction can be awarded. Psychiatric injury ================== For a successful claim in psychiatric injury, C must prove fault against D in relation to the incident. All claimants must prove they are suffering from a recognised psychiatric condition (Hinz v Berry) capable of resulting from the shock of the incident (Calascione v Dixon) and recognised as having long term effects. The presence of a psychiatric injury is a 'matter for expert evidence' so C will need a report from an expert witness establishing this. C must prove that they fall into a category of claimant accepted by the courts in Alcock v Chief constable of south Yorkshire. This can be a primary victim, those who are at the scene, are injured or at risk of injury (Dulieu v White), or a secondary victim, those who are present at the scene or the immediate aftermath and who fear for the safety of a primary victim. Primary victims need not be a person of normal fortitude (Page v Smith) and needs to prove some form of physical injury was foreseeable. **Apply** In order to prevent a flood of claims arising from a single incident, there are a number of control criteria C must prove. They must: be present at the scene or immediate aftermath (Benson v Lee), perceive events through their own unaided sense (Boylan v Keegan), prove a close tie of love and affection with the primary victim, a person of normal fortitude and the illness must be caused suddenly (Tredget v Bexley HA). **Apply** D may raise the defence of contributory negligence or Volenti non fit injuria. Economic loss ============= Whether C can recover financial loss depends on whether it is consequential economic loss or pure economic loss For pure economic loss, there is a general rule that there is no liability. It is the financial loss that is not a consequence of personal injury to C or damage to C's property. The only exception to this is where the economic loss is results from a negligent misstatement. Even then, D will only be liable where there is a special relationship (Weller v Foot and mouth disease research institute) Consequential economic loss is where C's economic loss is a consequence of personal injury to C or damage to the C's property then it will be recoverable as part of the overall claim (Spartan steel v Martin & Co). **Apply** Negligent misstatements ======================= A negligent misstatement is an exception to the rule where C cannot recover damages. A claim can only be made by those who suffer financial loss as a result of relying on a statement if there is a 'special relationship (Hedley Byrne v Heller) or 'relationship of proximity' (Caparo v Dickman) between them and the maker of the statement. For there to be a special relationship, the person giving the advice must be in possession of having a special skill or expertise (Esso petroleum v Mardon) and voluntarily assumes responsibility for his/her statements. D will normally only be liable if they know who will rely on the statement and if they know what the statement will be used for. C must then show that he did actually rely on the statement and that it was reasonable for him to do so (JEB fasteners v Marks Bloom). **Apply** Occupiers' liability 57 ======================= Occupiers' liability deals with the liability of occupiers for injury or damage resulting to persons or goods lawfully on any land or other property from dangers due to the state the premises. The occupier is the person with control over the premises (Wheat v Lacon) with premises being defined in s.1(3)(a) as a fixed or moveable structure, including any vessel, vehicle or aircraft'. The premises do not have to be completely safe, but the occupier has to take such care as is reasonable to see that the visitor will be reasonably safe in using the premises. **Apply** Occupiers owe all lawful visitors the 'common duty of care' (s.2(1)) which was defined in s.2(2) as 'a duty to take such care as is reasonable to see that the visitor will be reasonably safe'. If the visitor is a child -- Under (s.2(3)(a)), the standard of care towards children is measured subjectively, according to the age of the child. What may pose no threat to an adult may be very dangerous to a child (Maloney v Lambeth LBC). Where the independent contractor is injured -- Under s.2(3)(b), An occupier may expect that a person in the exercise of his calling, will appreciate and guard against special risks ordinarily incident to it so far as the occupier leaves him free to do so. Where the Independent contractor causes the injury - Under s.2(4)(b), The occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor. The occupier may be able to the pass the claim to the workman, provided the three criteria are met which are: Was it reasonable to entrust the work (Haseldine v Daw & Son), Has D taken reasonable steps to ensure that the contractor is competent? (Bottomley v Todmorden Cricket club) And where possible the occupier must check the work (Woodward v Mayor Hastings). Where a visitor is neither a child nor independent contractor, apply the risk factors from negligence. **Apply** Defences: Under s.2(4)(b), where a visitor is injured by a workman's negligent work, Consent - Consent is a full defence, when C accepts a voluntary assumption of the risk of harm. To succeed, D has to show; knowledge of the precise risk involved, exercise of free choice by C and a voluntary acceptance of the risk. Contributory negligence - Any damages awarded to C can be reduced according to the extent or level to which C had contributed to his own harm. This could be either where C was to blame for the incident occurring (Brannon v Airtours) or where C is not to blame for the incident occurring, but his conduct made it worse (Froom v Butcher) Remedies: Compensatory damages Occupiers' liability 84 ======================= Under occupiers' liability act 1984, C can become a trespasser if they exceed; the area of permission, the purpose of permission and overstaying permission. Firstly, under s.1(1), the claim must arise from the dangerous state of premises not the dangerous activities of C (Keown v Coventry Healthcare NHS trust). **Apply** Next there must be a duty of care between the occupier and the trespasser. This includes; knowledge of the danger/ reasonable grounds to believe it exists (s.1(3)(a))(Rhind v Astbury water park), knows or has reasonable grounds to believe the other is in, or will come into the vicinity of the danger (s.1(3)(b))(Higgs v Foster), and the risk is one which he may be expected to offer some protection against (s.1(3)(c))(Penny v Northborough council). The occupier must take "such care as is reasonable to see that the trespasser does not suffer injury on the premises" (s.1(4)). **Apply** Next, the occupier must breach their duty. The occupier can discharge his duty of care by reaching the standards of the reasonable occupier. They can do this by; assessing likelihood of trespass, seriousness of injury risked, cost/practicality of precautions, age and purpose of trespasser. They can also give a warning/discourage others from taking the risk (Tomlinson v Congleton BC). They do not need to warn against obvious dangers (Ratcliff v McConnell). **Apply** Defences: Consent -- Under s.1(6) the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted. Contributory negligence -- damages may be reduced under the law reform act where the visitor fails to take reasonable care for their own safety. Vicarious liability =================== The first stage of vicarious liability asks whether the relationship between D and the tortfeasor is one of employment or akin to employment. Historically, the courts have applied various tests including the multiple test from Ready Mixed Concrete v MPNI. It questions the control, personal performance, mutuality of obligation and other factors such as ownership of tools or Tax and NI contributions. **Apply** The second stage asks whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of his/her employment or quasi employment? **Apply** According to the Salmond test (The law of Torts 1907), employees will be acting in the course of employment if they commit: A wrongful act that has been authorised by the employer or a wrongful and unauthorised mode of doing some act authorised by the master. If the tortfeasor is doing something they are authorised to do then they will be acting in the course of their employment. This applies even where the tortfeasor is doing their job negligently, overzealously or contrary to express instructions. **Apply** Rylands v Fletcher ================== Liability under Rylands v Fletcher is now regarded as a particular type of nuisance. It deals with isolated escapes rather than continuous interferences and it is a form of strict liability, in that D may be liable in the absence of any negligent conduct on their part. C must have a legal interest in the land and D must be the owner or occupier of land from which the 'thing' escapes. **Apply** Firstly, there must be an artificial accumulation of a substance on D's land (Giles v Walker) and the substance must be dangerous. This does not mean the substance is ordinarily dangerous, but rather it is likely to cause mischief if it escapes, posing an exceptionally high-risk of danger. **Apply** Next the accumulation must constitute a non-natural use, and it must escape. This means it must be an extraordinary and unusual use of land. There will not be liability for a man-made accumulation if it can be described as ordinary and not 'commonplace'. It must escape for land under D's control to land that is not. **Apply** Next, the damage must reasonably foreseeable. Only foreseeable damage can be recovered and not damages for personal injury. **Apply** D may be able to raise the defence of an act of God, act of a stranger, statutory authority, common benefit or C's fault. If the claim is successful, damages can be awarded for damage to property and consequential losses, but not for personal injury.