Occupiers' Liability Act 1957 & 1984 PDF

OCCUPIERS' LIABILITY ACT 1957 (Lawful Visitors) This Act covers lawful visitors and requires occupiers to take reasonable care to ensure visitors are reasonably safe on their premises. 📖 Key Statutory Sections (1957 Act) s.1(1): The Act applies to lawful visitors (contractual entrants, invit...

OCCUPIERS' LIABILITY ACT 1957 (Lawful Visitors) This Act covers lawful visitors and requires occupiers to take reasonable care to ensure visitors are reasonably safe on their premises. 📖 Key Statutory Sections (1957 Act) s.1(1): The Act applies to lawful visitors (contractual entrants, invitees, licensees). s.2(2): Duty to take reasonable care to ensure visitors are reasonably safe while on the premises. s.2(4)(a): Warnings can discharge liability if they are sufficient to keep the visitor safe. s.2(3): Special duty to children – occupiers should expect children to be less careful than adults. s.2(4)(b): Occupiers can shift liability to independent contractors if they’ve taken reasonable steps to ensure the contractor is competent. 🧑‍⚖️ Key Cases (1957 Act) 🏠 Wheat v Lacon (1966) – Who Is an Occupier? Facts: A guest fell and died in a pub due to a broken staircase. The pub manager was not the owner. Principle: An occupier is someone with control over the premises. Control can be shared. Lord Denning's Test: If a person has sufficient control to prevent harm, they are an occupier. ⚠️ Darby v National Trust (2001) – Warnings Facts: A man drowned in a pond with no warning signs. Principle: No liability because the risk of drowning in a pond is obvious. s.2(4)(a): A warning sign is only necessary if the danger is not obvious. 🧸 Phipps v Rochester Corporation (1955) – Parental Responsibility for Children Facts: A 5-year-old boy fell into a trench on land owned by the council.  Principle: Parents are responsible for their children’s safety in obvious dangers. Quote (Devlin J): “Responsibility for the safety of little children must rest primarily on the parents.” 🛠 Haseldine v Daw (1941) – Independent Contractors Facts: A visitor was killed by a faulty lift maintained by an independent contractor. Principle: An occupier is not liable if they’ve hired a competent contractor to do a specialized task. ❌ 2. OCCUPIERS' LIABILITY ACT 1984 (Trespassers) This Act covers trespassers and those who enter without permission, but only for death or personal injury. It imposes a limited duty compared to the 1957 Act. 📖 Key Statutory Sections (1984 Act) s.1(1): Duty applies to trespassers. s.1(3): Duty is owed if the occupier: 1. Knows the danger exists. 2. Knows the trespasser may come near the danger. 3. The danger is something they can protect against. s.1(4): The duty is to take reasonable care to prevent injury from known dangers. s.1(5): The duty can be discharged by reasonable warnings or discouraging trespassing. 🧑‍⚖️ Key Cases (1984 Act) 🏊 Tomlinson v Congleton Borough Council (2003) – Trespassers and Dangerous Activities Facts: A young man ignored signs and dived into a shallow lake, breaking his neck. Principle: The 1984 Act doesn’t require occupiers to protect trespassers from obvious dangers.  Lord Hoffmann’s Key Point: The law doesn’t protect people from their own reckless actions. 🧒 Spearman v Royal United Bath Hospitals (2017) – Trespassers and Mental Capacity Facts: A patient with a mental health condition entered a restricted area of a hospital and was injured. Principle: The occupier must consider the mental capacity of the trespasser. If the trespasser cannot understand the risk, the duty may still apply. 🧸 Glasgow Corporation v Taylor (1922) – Allurement and Children Facts: A 7-year-old boy ate poisonous berries from a park. There was no warning. Principle: Children are drawn to attractive dangers (like berries or playgrounds). The occupier must take extra precautions to prevent harm to children. 🧩 3. Comparing the Two Acts (1957 vs 1984) Aspect 1957 Act (Lawful Visitors) 1984 Act (Trespassers) Duty Owed Common duty of care Limited duty to prevent injury Type of Damage Personal injury + property Only death or personal injury Covered damage Who It Covers Lawful visitors Trespassers + non-visitors Warnings Must be sufficient to keep Must discourage entry or visitors safe reduce risk Special Cases Children, Independent Trespassers, Mental Capacity Contractors 🚨 4. Defences for Occupiers ✅ 1. Warnings (1957 Act – s.2(4)(a)) Occupiers can avoid liability by giving sufficient warnings. The warning must be clear enough to help the visitor stay safe. Case: Darby v National Trust – No liability if the risk is obvious. ✅ 2. Consent (Volenti Non Fit Injuria) If a person willingly accepts the risk, the occupier is not liable. Case: Titchener v British Railways Board (1983) – A teenage girl was hit by a train after walking on the tracks. The court held she accepted the risk. ✅ 3. Contributory Negligence If the injured person is partly to blame, the court can reduce damages. Case: Clare v Perry (2005) – A woman jumped over a wall and got hurt. The court reduced her compensation because she didn’t act reasonably. 📚 5. Exam-Ready Case Summaries Case Key Point Wheat v Lacon Control Test (Who is an Occupier?) Tomlinson v Congleton BC Trespassers and Dangerous Activities Spearman v Royal United Mental Capacity of Trespassers Bath Phipps v Rochester Corp Parental Responsibility for Children Darby v National Trust Warnings for Obvious Dangers Haseldine v Daw Liability of Independent Contractors Glasgow Corp v Taylor Allurement Principle (Children) Titchener v British Railways Consent (Volenti Non Fit Injuria) 💡 6. Quick Exam Formula for Problem Questions 1. Identify the type of visitor (Lawful Visitor or Trespasser). 2. Apply the correct Act (1957 or 1984). 3. State the duty owed (Reasonable care or limited duty). 4. Mention key cases to back your points. 5. Discuss defences like warnings, consent, or contributory negligence. Let me know if you need more clarifications or case explanations! 😊 Semianr 2 The act is the foundation the topic, 57 act and 84 act that need to be known 57- looks at lawful vistors Invites, licensees and contractors enters The occupier is key to look at wheat v lacon Occ need to show control Need to id occ Tomlinson v Congleton Borough Council 3 All ER 1122 Spearman v Royal United Bath Hospitals NHS Foundation Trust EWHC 3027(QB) 84 act- Trespass are mostly children In the context of occupiers’ liability, the courts distinguish between lawful visitors and trespassers based on the rights each individual has to be on the occupier’s property. This distinction is critical because the level of duty owed by occupiers to lawful visitors differs from that owed to trespassers. Here’s an analysis of this distinction, along with an evaluation of its appropriateness, through the cases of Tomlinson v Congleton Borough Council and Spearman v Royal United Bath Hospitals NHS Foundation Trust. 1. Distinction Between Lawful Visitors and Trespassers Under the Occupiers' Liability Act 1957, lawful visitors are individuals who have permission—express or implied—to be on the premises. Occupiers owe lawful visitors a duty to ensure that the premises are reasonably safe. In contrast, trespassers, who enter without permission or exceed their permitted purpose, are covered under the Occupiers' Liability Act 1984. The duty owed to trespassers is narrower; occupiers are only required to take reasonable steps to prevent injury where they are aware of potential dangers and of the trespasser's presence. 2. Case Analysis: Tomlinson v Congleton Borough Council Facts: In Tomlinson, the claimant suffered severe injuries after diving into a lake in a public park managed by the council. Although swimming was prohibited, Tomlinson entered the water as a trespasser in violation of posted signs. Court Decision: The House of Lords held that the council did not owe a duty under the Occupiers' Liability Act 1984. It ruled that the danger came from Tomlinson's actions rather than the premises themselves, as there was no hidden danger.  Significance: The court emphasized personal responsibility and limited the scope of occupiers’ liability to prevent claims from individuals who willingly engage in risky behavior. Here, the court’s approach highlights the distinction between lawful visitors and trespassers, suggesting that occupiers should not be overly burdened with protecting individuals from self-inflicted harm when those individuals enter premises as trespassers. 3. Case Analysis: Spearman v Royal United Bath Hospitals NHS Foundation Trust Facts: In Spearman, the claimant, a psychiatric patient, wandered unsupervised and fell from an unmarked fire escape, sustaining severe injuries. Spearman had not entered as a trespasser in the traditional sense, but at the time of the accident, he was in an area where patients were not typically allowed. Court Decision: The court determined that although Spearman had not been expressly permitted to be in that area, he was not a trespasser. Given his mental state and lack of warning or signage, the hospital owed him a duty of care. Significance: The judgment reflects a flexible interpretation of what constitutes lawful presence. Given Spearman’s vulnerability and lack of intent to trespass, the court extended protections to him that might not traditionally apply to trespassers. This case demonstrates the court’s willingness to prioritize context and vulnerability over strict categorization. 4. Is the Lawful Visitor-Trespasser Distinction Appropriate? Arguments For the Distinction: The distinction between lawful visitors and trespassers maintains a balance between occupiers’ responsibilities and individual autonomy. By limiting the duty owed to trespassers, the law protects property owners from undue liability, particularly in cases where individuals engage in risky or unauthorized behaviors, as seen in Tomlinson. Arguments Against the Distinction: In some cases, such as Spearman, the lawful visitor-trespasser distinction may seem rigid, failing to account for the vulnerability or intent of individuals. Courts occasionally must expand protections to ensure justice is served, especially when individuals may unknowingly enter restricted areas without intent to harm or damage. Conclusion The distinction between lawful visitors and trespassers is foundational in occupiers' liability law, and it generally serves to protect occupiers from excessive liability. However, cases like Spearman show that a rigid application of this distinction may not always be appropriate, especially when an individual’s vulnerability or mental state impacts their actions. The courts’ approach in these cases reveals a careful balancing act: maintaining clear liability boundaries while accommodating unique circumstances where strict categorization might lead to unjust outcomes PRIVATE NUISANCE – REVISION GUIDE ✅ Definition of Private Nuisance: Winfield: “Private nuisance consists of a continuous, unlawful, and indirect interference with the use or enjoyment of land, or with some right over or in connection with it.” Bamford v Turnley (1862) per Bramwell B: “Any continuous activity or state of affairs causing a substantial and unreasonable interference with a plaintiff’s land or enjoyment of that land.” Key Elements of Private Nuisance: To succeed in a private nuisance claim, the claimant must prove: 1️⃣ Legal Standing (Interest in Land) 2️⃣ Unreasonable Use of Land by the Defendant 3️⃣ Continuous and Indirect Interference 4️⃣ Harm to the Claimant 📌 1. Legal Standing (Who Can Sue?) A claimant must have a legal interest in the land to bring a private nuisance claim. 🔑 Key Case: Hunter v Canary Wharf Ltd Claimants complained about loss of TV reception due to the Canary Wharf tower. Held: Only those with proprietary interests (owners, tenants) can sue in private nuisance. Visitors, family members, or lodgers cannot bring a claim. 📌 Other Cases on Legal Standing: Malone v Laskey – A wife injured by vibrations caused by a neighbor's machinery could not sue as she had no legal interest in the property. Khorasandjian v Bush – Initially allowed non-owners to sue, but this was overruled by Hunter. ⚖️ Human Rights Impact (Article 8 – Right to Private Life):  Khatun v UK – The European Court of Human Rights ruled that nuisance claims may fall under Article 8 if interference affects private and family life. McKenna v British Aluminium – Children were allowed to claim under HRA 1998, despite no legal interest in the land. 📌 2. Unreasonable Use of Land by the Defendant The key issue is whether the defendant’s use of their land is unreasonable or exceeds ordinary and common use. Relevant Factors for Assessing Unreasonableness: Factor Case Relevance Sensitivity of Robinson v Kilvert No liability if only an abnormally sensitive the claimant (1889) claimant suffers damage. Time, Halsey v Esso Night-time noise is more likely to be a duration, Petroleum (1961) nuisance. intensity Character of Sturges v Bridgman Locality matters – what is reasonable in one the area (1879) area may be unreasonable in another. Foreseeability Cambridge Water v Foreseeable harm is required to impose of damage Eastern Counties liability. Malice by the Hollywood Silver Fox Malicious acts are more likely to be defendant Farm v Emmett considered a nuisance. 🔎 Hunter v Canary Wharf: What Counts as a Nuisance? Lord Lloyd in Hunter clarified that nuisance is more than mere annoyance. It must interfere with the use and enjoyment of land. Example: Loss of TV reception was not considered a nuisance because it didn’t interfere with use of the land itself. 🔎 Fearn v Board of Trustees of the Tate Gallery Facts:  The Tate Modern's public viewing platform allowed visitors to look directly into nearby flats, causing a loss of privacy. Held: Supreme Court (Lord Leggatt JSC) ruled that the platform constituted a nuisance, focusing on whether the defendant's use of land was ordinary and common. Lord Sales JSC (dissenting): The test should remain reasonable, considering reciprocity and compromise between neighboring landowners. 🔑 Key Principle from Fearn: Lord Leggatt: Use of land should be assessed based on ordinary and common use rather than just reasonableness. ⚖️ Malice in Nuisance Claims: Case Principle Hollywood Silver Fox If a defendant acts maliciously to cause harm, it will be Farm v Emmett nuisance even if the act would otherwise be lawful. 📌 3. Continuous and Indirect Interference A nuisance must be continuous and indirect. Case Example De Keyser’s Royal Hotel Night-time piledriving was a nuisance despite being v Spicer temporary. Crown River Cruises v A 20-minute fireworks display causing physical damage Kimbolton was deemed a nuisance. 📌 4. Requirement of Harm The claimant must suffer some harm for a nuisance to be actionable. Nuisance is not actionable per se – actual damage must occur. Types of Harm: Physical damage to property.  Loss of amenity (e.g., noise, smells). 🛡️ Defenses to Private Nuisance: Defense Explanation Case Statutory If the activity is authorized by law, no nuisance Allen v Gulf Oil Authority claim can be made. Refining Prescription If the defendant has been carrying out the activity Sturges v for 20+ yearswithout complaint, they acquire a right. Bridgman (1879) Consent The claimant consented to the activity. Act of God The nuisance was caused by natural forces beyond human control. Unforeseeable The nuisance was caused by a third party beyond Act of the defendant's control. Stranger Necessity The defendant’s actions were necessary to prevent greater harm. 📌 Remedies for Private Nuisance: 1️⃣ Damages – Monetary compensation for harm caused. 2️⃣ Injunctions – Court orders to stop the nuisance. Kennaway v Thompson (1981) – Injunction to limit motorboat racing. 3️⃣ Abatement – The claimant may take action themselves to stop the nuisance (e.g., cutting overhanging branches). 📌 Relationship with Negligence: There is overlap between nuisance and negligence, particularly in terms of foreseeability of harm. Nuisance Negligence Focuses on interference with land. Focuses on personal injury or property damage. Requires continuous and indirect Requires a breach of duty. interference. 📚 Key Cases to Remember: Case Principle Hunter v Canary Wharf Legal standing; nuisance must interfere with use of land. Fearn v Tate Gallery Focused on ordinary and common use vs. reasonableness. Sturges v Bridgman Character of locality is relevant. Cambridge Water v Eastern Foreseeability of damage is required. Counties Hollywood Silver Fox Farm v Malice can make an otherwise lawful act a Emmett nuisance. Public Nuisance Definition: A public nuisance is a nuisance “which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects.” Key Case: Attorney-General v PYA Quarries Ltd 2 QB 169 Romer LJ: “A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.” Differences Between Public and Private Nuisance: Public Nuisance Private Nuisance Affects a representative cross-section of a class Affects an individual or specific of society. property. Is both a crime and a tort. Is a civil wrong. Requires proof of a class affected. Requires proof of legal interest in land. Requirements of Public Nuisance To establish a public nuisance, the following elements must be proven: 1. Nuisance Must Affect a 'Class' of People The nuisance must impact a sufficiently large group or section of the public. Key Case: Attorney-General v PYA Quarries Ltd Facts: An injunction was granted to stop the defendant from emitting dust, stones, and vibrations from their quarry, which affected the local residents. Held: The Court of Appeal stated that a representative cross-section of the affected people is sufficient to establish a class. It is not necessary to prove that every member of the class was affected. Romer LJ:  “The sphere of the nuisance may be described generally as 'the neighbourhood'; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case.” Case Examples: Case Facts Class of People Affected R v Ong Defendant planned to interfere with Football spectators. floodlights during a football match. R v Lowrie Defendant made hoax emergency calls. People in genuine need of emergency services. Rv Defendant sent racially offensive No public nuisance as it Rimmington materials to individuals. affected individuals, not a class. Rv Defendant enclosed salt in an envelope No public nuisance as there Goldstein as a joke, causing an anthrax scare. was no intent to cause harm. 2. Special or Particular Harm (For Civil Claim in Tort) In order to bring a civil claim for public nuisance, the claimant must show that they have suffered special damagebeyond that experienced by the rest of the affected class. Key Case: Tate & Lyle v Greater London Council Facts: Tate & Lyle suffered economic loss due to obstructions in the river caused by the defendants. Held: Tate & Lyle could claim damages because they had suffered special damage that was distinct from the inconvenience experienced by the public at large. 3. Fault Element in Public Nuisance The defendant is liable if they knew or ought to have known about the risk of the type of nuisance that occurred. The test of foreseeability is similar to that in private nuisance. Key Case: R v Goldstein Facts: The defendant sent salt in an envelope as a joke. The salt leaked in a Post Office sorting office, causing an anthrax scare and an evacuation. Held: The House of Lords ruled that there was no public nuisance because the defendant did not know, nor could he reasonably have foreseen, that the salt would leak and cause harm. Examples of Public Nuisance Public nuisance can cover a broad range of conduct, including: Organizing or participating in a rave. Playing loud music. Urinating or defecating in public spaces. Lighting fires, fireworks, or barbecues. Consuming or selling nitrous oxide. Damaging public property or uprooting trees. Key Case: London Borough of Hackney v Persons Unknown An injunction was granted to stop antisocial behavior in London Fields park. The prohibited activities included: Raves. Loud music. Public urination. Lighting fires. Selling nitrous oxide. Civil Actions Against Public Nuisance There are three ways to bring a civil action for public nuisance: 1. By a Realtor Action A realtor action is brought in the name of the Attorney General on behalf of a private citizen. These actions are rare. Reasons why realtor actions are rare: 1. Local authorities usually bring public nuisance actions. 2. The Attorney General is unlikely to agree unless there is special damage. 3. Most public nuisances are covered by statutory provisions. 2. By a Local Authority Local authorities can bring actions under the Local Government Act 1972, s.222. 3. By a Private Citizen A private citizen can bring a tort claim if they can show they have suffered special damage beyond that experienced by the public. Defenses to Public Nuisance In addition to general defenses to tort (such as contributory negligence), there are specific defenses to public nuisance: 1. Statutory Authority If the defendant’s actions are authorized by statute, this can be a defense to public nuisance. Key Case: Allen v Gulf Oil Refining Facts: The defendant's oil refinery was authorized by statute. Held: The statutory authority defense succeeded, as the nuisance was an inevitable consequence of operating the refinery. 2. No Defense of Prescription Unlike private nuisance, prescription (the right to continue a nuisance due to long-term use) cannot be used as a defense to public nuisance. Civil Remedies for Public Nuisance The remedies available for public nuisance include: 1. Damages – Monetary compensation for harm suffered. 2. Injunctions – Court orders to prevent the continuation of the nuisance. Summary of Key Cases: Case Principle  Attorney-General v PYA Public nuisance requires a class of people to be Quarries affected. Tate & Lyle v Greater London Claimants must show special damage to bring a civil Council claim. R v Ong Planning to disrupt a football match was public nuisance. R v Lowrie Hoax emergency calls caused a public nuisance. R v Rimmington Sending offensive letters to individuals was not public nuisance. R v Goldstein No public nuisance if harm was not foreseeable. Would you like additional examples or a practice problem to test your understanding? The Rule in Rylands v Fletcher Definition: The Rule in Rylands v Fletcher establishes strict liability for landowners who bring onto their land something likely to cause damage if it escapes. The person responsible must take precautions to prevent the escape, and if it does escape and causes damage, they are prima facie liable for the resulting harm. Key Quote: “We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” - Blackburn J. This rule was confirmed by the House of Lords in Rylands v Fletcher (1868) LR 3 HL 330. Key Requirements of the Rule The rule has been modified over time to include four key elements: 1. Something Brought Onto the Land The defendant must have brought something onto their land that is likely to cause harm if it escapes. The thing must be artificial (man-made) rather than naturally occurring. It must pose a special danger or risk. Key Case: Transco PLC v Stockport Metropolitan Borough Council 2 AC 1 Facts: Water escaped from pipes maintained by the local council, causing damage to nearby land. Held: The supply of water through pipes was considered a normal and routine activity that did not create any exceptional risk. Therefore, the rule did not apply. Lord Bingham: “Water in quantity is almost always capable of causing damage if it escapes. But the piping of a water supply from the mains to the storage tanks in the block was a routine function which would not have struck anyone as raising any special hazard.” 2. Escape There must be an escape of the dangerous thing from the defendant’s land to another person’s property. The damage must occur outside the defendant’s property. Key Case: Read v J Lyons & Co AC 156 Facts: Explosives detonated inside a munitions factory, killing and injuring people within the premises. Held: There was no escape from the defendant’s property, so the rule did not apply. Key Case: Stannard (t/a Wyvern Tyres) v Gore EWCA Civ 1248 Facts: A fire started on the defendant’s property, caused by tyres catching fire. The fire spread to neighbouring land. Held: The fire escaped, but the tyres (which were brought onto the land) did not. Since the fire itself was not a thing brought onto the land, the rule did not apply. 3. Non-Natural Use of Land The defendant’s use of land must be considered non-natural or extraordinary. A natural use is something ordinary, normal, or necessary. A non-natural use involves something extraordinary or dangerous. Key Case: Rickards v Lothian AC 263 Facts: An unknown person left a tap running, causing water to overflow and damage the plaintiff’s property. Held: The provision of water supply was considered a natural use of the land. Lord Moulton: “The provision of a proper supply of water to various parts of a house is not only reasonable but has become an almost necessary feature of town life.” Key Case: Cambridge Water Co Ltd v Eastern Counties Leather PLC 2 AC 264 Facts: The defendant’s tannery spilled small amounts of chemicals (PCE) over time, which seeped into the ground and contaminated the claimant’s water supply. Held: The storage of substantial quantities of chemicals was a non-natural use of land. Lord Goff: “The storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use.” 4. Foreseeability of Damage The type of damage caused must be reasonably foreseeable. This requirement was introduced in Cambridge Water Co Ltd v Eastern Counties Leather PLC. Lord Goff: “Foreseeability of damage of the relevant type should be regarded as a prerequisite of liability in damages under the rule.” This requirement aligns with the principle from Wagon Mound (No 1), which states that damage must be reasonably foreseeable to be compensable. Defences to the Rule in Rylands v Fletcher There are several recognised defences that can absolve the defendant from liability: 1. Consent (Volenti Non Fit Injuria) If the claimant consents to the presence of the dangerous thing on the defendant’s land, the defendant is not liable. Key Case: Carstairs v Taylor (1871) LR 6 Exch 217 Facts: Water stored for the benefit of both landlord and tenant escaped and caused damage. Held: The tenant had consented to the storage of water, so the landlord was not liable. 2. Act of God An act of God refers to natural events that are so extraordinary and unpredictable that they cannot be prevented. Key Case: Nichols v Marsland (1876) LR 2 Ex D 1 Facts: The defendant’s artificial lakes overflowed after unprecedented rainfall, causing damage to neighbouring land. Held: The defendant was not liable because the event was considered an act of God. 3. Act of a Stranger The defendant is not liable if the damage was caused by the deliberate actions of a third party over whom they had no control. Key Case: Perry v Kendrick’s Transport Ltd 1 WLR 85 Facts: A child threw a lit match into the petrol tank of the defendant’s bus, causing an explosion. Held: The defendant was not liable as the act was done by a stranger. 4. Statutory Authority If the defendant’s actions are authorised by statute, they may not be liable. Key Case: Charing Cross Electric Supply Co v Hydraulic Power Co 3 KB 772 Facts: The defendant’s water mains burst, causing flooding. The defendant argued that they were authorised by statute. Held: The defence of statutory authority was allowed. 5. Contributory Negligence If the claimant’s own negligence contributed to the damage, the defendant’s liability may be reduced under the Law Reform (Contributory Negligence) Act 1945. Modern Developments and Criticisms The rule was established at a time of industrialisation and growing public concern over burst reservoirs. Australia has abolished the rule in Burnie Port Authority v General Jones Pty Limited. Scotland does not follow the rule, as seen in RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council. In English and Welsh law, the rule is increasingly seen as part of the tort of nuisance rather than a separate category. Summary of Key Cases: Case Principle Rylands v Fletcher (1868) Established the rule of strict liability for escapes. Transco PLC v Stockport Council Sets a high threshold for non-natural use. (2004) Read v J Lyons & Co (1947) No liability if there is no escape. Rickards v Lothian (1913) Non-natural use must be extraordinary.  Cambridge Water Co v Eastern Introduced foreseeability of damage as a Counties requirement. Nichols v Marsland (1876) Defence of act of God. Perry v Kendrick’s Transport (1956) Defence of act of a stranger. Would you like further examples or practice questions on this topic? Duty of Care Revision Notes Definition of Duty of Care Duty of care refers to a legal obligation imposed on individuals to exercise reasonable care to avoid acts or omissions that could foreseeably cause harm to others. It is a fundamental concept in negligence law, requiring individuals to take precautions to prevent injury or damage to those who are likely to be affected by their actions. The duty is owed to persons who are sufficiently close and directly impacted by one’s conduct. Key Case: Donoghue v. Stevenson AC 562 Facts: A woman became ill after consuming a ginger beer that contained a decomposed snail. Legal Principle: Introduced the neighbour principle. Lord Atkin’s Neighbour Principle: ○ "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." ○ Neighbour: Persons who are closely and directly affected by your acts. ○ The test is objective: What would a reasonable person foresee? Anns v. Merton London Borough Council AC 728 Two-Stage Test: 1. Neighbour Test: Would a reasonable person foresee a risk of harm to the claimant? 2. Policy Considerations: Are there any policy reasons to exclude the duty of care? Significance: Expanded the scope of duty of care. Criticism: Created a presumption of duty unless policy reasons justified exclusion. Overruled in: Murphy v. Brentwood District Council (1990). Caparo Industries v. Dickman 1 All ER 568 Three-Stage Test for novel duty of care cases: 1. Reasonable Foreseeability: Was the damage reasonably foreseeable? 2. Proximity: Was there a relationship of proximity between D and C? 3. Fair, Just, and Reasonable: Is it just, fair, and reasonable to impose a duty of care? Significance: Modern test applied by courts in novel cases. Pre-1932 Position Liability was limited to pre-existing duty situations. The restrictive approach changed after Donoghue v. Stevenson. Establishing a Claim in Negligence 1. Duty of Care: Does D owe C a duty of care? 2. Breach of Duty: Did D breach the duty of care? 3. Causation: Did the breach cause the damage? 4. Remoteness: Is the damage too remote? Note: Damage is essential for liability. Negligence imposes a duty not to inflict damage carelessly, rather than to act carefully. Proximity Cases Muirhead v. Industrial Tank Specialists Ltd : Proximity between D and C required. Watson v. British Boxing Board of Control : Boxing authority owed a duty to provide proper medical care. Sutradhar v. Natural Environment Research Council : No duty of care where proximity was lacking. Fair, Just, and Reasonable Cases Courts consider factors such as the floodgates argument, defensive practices, financial consequences for public authorities, and alternative remedies. Hill v. Chief Constable of West Yorkshire : Police owed no duty to a victim of a serial killer. Smith v. Chief Constable of Sussex Police : Police did not owe a duty of care in this case. Michael v. Chief Constable of South Wales Police : No duty was owed where there was a failure to respond to an emergency call. Robinson v. West Yorkshire Police : Police owed a duty to bystanders during an arrest. The Incremental Approach Emphasized by courts after retreating from Anns. Sutherland Shire Council v. Heyman [1955–95]: Preferred development of negligence incrementally by analogy. Murphy v. Brentwood District Council : Reaffirmed the incremental approach and overruled Anns. The Retreat from Anns Judicial unease about the wide scope of liability created by Anns. Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd : Highlighted the concerns. Leigh & Sillavan v. Aliakmon : Limited liability. Yuen Kun-yeu v. AG of Hong Kong : Further restriction of duty of care. Illustrative Cases on Novel Situations Darnley v. Croydon Health Services NHS Trust : Confirmed that the three-stage test applies to new duty of care situations. Breach of Duty of Care Introduction Breach of duty is concerned with determining whether the defendant's conduct can be characterized as careless. This involves a two-stage process: 1. Determining the appropriate standard of care: This is a question of law, requiring a value judgment by the judge, who will rely on the standards of the hypothetical 'reasonable person.' 2. Assessing whether the defendant's conduct fell below the required standard: The claimant generally has the burden of proving this on a balance of probabilities. In practical terms, breach of duty is often the most important issue in negligence cases. Questions of duty and causation are usually straightforward, such as in road accidents where it's obvious a road user owes a duty of care to others and the actions of one driver caused the injury. The Objective Standard When determining breach of duty, courts use an objective test based on the reasonable person standard. Personal characteristics, idiosyncrasies, or weaknesses of the defendant are ignored. Key Case: Nettleship v Weston 2 QB 691 In this case, it was held that the defendant's lack of experience does not lower the standard of care expected. The objective standard also applies to drivers who become physically incapable of controlling the vehicle due to a medical condition, such as a heart attack. Other Relevant Cases: Roberts v Ramsbottom 1 All ER 7 Mansfield v Weetabix Ltd 1 WLR 1263 The Standard of Reasonableness The duty of care does not impose an unqualified duty to prevent harm but requires taking reasonable steps to avoid foreseeable harm. Case: Simmonds v Isle of Wight Council EWHC 2303 The courts conduct a balancing exercise between the risks created by an activity and the practicality of precautions. They also consider the seriousness of potential harm and the purpose of the activity. Magnitude of Risk The magnitude of risk includes the likelihood of harm, the severity of damage, and the practicality of precautions. Likelihood of Harm Bolton v Stone AC 850 Miller v Jackson QB 966 Haley v London Electricity Board AC 778 Severity of Damage Paris v Stepney Borough Council AC 367: The more serious the potential consequences, the greater the precautions required. Practicality of Precautions Latimer v AEC Ltd AC 643: Precautions must be reasonable and proportionate to the risk. Social Utility of Defendant's Conduct Watt v Hertfordshire County Council 1 WLR 835: The court may consider whether the defendant's actions served a socially beneficial purpose. Section 1 of the Compensation Act 2006 allows courts to consider whether imposing additional precautions would deter socially desirable activities. Characteristics of the Defendant The standard of care may vary based on the defendant's characteristics, such as age or professional status. Children Mullins v Richards 1 All ER 920: A child is held to the standard of care expected from an ordinary and reasonable child of the same age. Professionals and Those with Special Skills Phillips v William Whitely 1 All ER: A professional is judged by the standards of their profession. Wilsher v Essex Area Health Authority 3 All ER 801: The court applies the 'Post Approach,' assessing the standard of care based on the defendant's role or post. Professional Opinion: The Bolam Test  Bolam v Friern Barnet Hospital Management Committee 2 All ER 118: A defendant is not negligent if their actions align with a responsible body of professional opinion. Bolitho v City & Hackney Health Authority 4 All ER 771: Courts have the final say on the reasonableness of professional conduct. Duty to Warn: Montgomery v Lanarkshire Health Board UKSC 11 Medical professionals must provide patients with sufficient information to make informed decisions about their treatment. Common Practice When assessing reasonable precautions, courts may consider common practice within a particular field. Relevant Cases: Wilson v Governors of Sacred Heart Roman Catholic Primary School 1 FLR 663 Thompson v Smith Ship Repairers (North Shields) Ltd QB 405 A Duty to Respond to Changes in Knowledge Professionals are expected to keep up with advancements in their field. Persisting with outdated methods may be considered negligent if new techniques have become widely accepted. Key Case: Marriott v West Midlands Regional Health Authority Lloyd's Rep. Med. 23 Courts expect professionals to adapt to accepted practices, but they are not expected to adopt every new technique immediately. Summary In negligence cases, proving breach of duty is crucial. Courts assess the defendant's conduct against the objective standard of a reasonable person while considering the magnitude of risk, practicality of precautions, and characteristics of the defendant. The Bolam test and subsequent cases emphasize the importance of professional standards and evolving knowledge in determining reasonable care.