#19836 - Ocr Tort Law - OCR A-Level Law (with Contract Law)

Tort law overview

Topics:

• Negligence

• OLA 1957

• OLA 1984

• Private nuisance

• Rylands v Fletcher

• Vicarious liability

• Standard defences

  • Consent volenti

  • Contributory negligence

• Remedies

Negligence

Introduction - Blyth v Birmingham Waterworks

Duty of care

• Robinson: if a similar duty/case already exists, automatically apply that duty. Examples: road users, medical staff, manufacturers.

• Caparo test (for new situations):

  • reasonably foreseeable harm? (Kent v Griffiths)

  • sufficient proximity? (Bourhill v Young)

  • fair, just and reasonable to impose duty? (Hill v CC WYP – FJR for police omissions) (Robinson – FJR for police acts)

Breach

D needs to achieve a standard of care (Reasonable Person Test - Blyth):

• Adult - reasonable care (Wells v Cooper).

• Child - whether they can appreciate the risk due to their age (Mullin v Richards, Orchard v Lee).

• Learner - standards of professional (Nettleship v Weston).

• Professional - ordinary skill of ordinary professional (Bolam v FHMC).

Considerations:

• Claimant characteristics (Paris v Stepney).

• Magnitude of risk (Bolton v Stone).

• Cost of precautions (Latimer v AEC).

• Knowledge of risk (Roe v Minister of Health).

• Social utility (Miller v Jackson). Emergencies (Day v High Performance Sports).

Causation

Factual - but for (Barnett v Chelsea and Kensington).

Legal – remoteness (type of harm) (The Wagon Mound, Hughes v Lord Advocate). Egg-shell rule.

Defences

• Volenti (Pitts v Hunt)

• Contributory negligence (Pitts v Hunt)

Remedies

• Damages (special - specific monetary costs before and during trial/ general - long term/future monetary and non-monetary costs).

*Res Ipsa Loquitur - shifts burden of proof to defence when D was clearly at fault (Scott v London).

OLA 1957

Introduction

• Define tort (there is a danger due to the state of the premises that causes injury to the claimant, which the occupier should have reasonably protected the visitors against), state tort contained in OLA 1957.

Define occupier

• sufficient control/ownership of premises (Wheat v E Lacon).

Define visitor

• has permission to access the premises, either invited expressly/impliedly or has a statutory/contractual/licensed right of entry.

• trespassing children are treated as visitors when there is an allurement (Jolley v LBS).

Danger

• Must be a danger on the premises (a risk of injury).

• Must be due to the state of premises (S1(1), Martin v Middlesbrough).

• Premises are land, buildings, some structures (S1(3)).

Duty

• Occupier owes 'common duty of care' to all visitors (S2(1)).

Breach

• Occupier must take reasonable care to ensure visitors are safe (S2(2), Laverton v KTS).

• Standards of care:

• Adults - regular standard (Clare v Perry).

• Children (s2(3)(a)) - below approx 8y/o, occupier can rely on parent to keep child safe. Between approx 8-14, debatable. Above approx 14y/o, occupiers owes a slightly higher standard (Phipps v Rochester, Glasgow).

• Tradespeople (s2(3)(b)) - owe less care as they should be responsible for risks relevant to their trade, when consequence occurs during the tradesperson exercising a calling (Roles v Nathan).

Causation

Factual - but for test (Barnett v Chelsea and Kensington).

Legal - remoteness (how reasonably foreseeable) (The Wagon Mound). Egg shell can apply (Smith v Leech Brain).

Defences

• Volenti (S2(5)).

• Contributory negligence (S2(3), Geary v Wetherspoon).

• Exclusion clauses (S2(1)) - excludes duty of care (businesses cannot exclude death/personal injury - S65 Consumer Rights Act 2015).

• Warnings (S2(4)(a)) - occupier must give sufficient warning to achieve reasonable safety. If danger is serious/unusual, warning is not enough (Rae v Mars). If danger is obvious, no need to warn (Bogle v McDonalds).

• Independent contractors (S2(4)(b)) - when danger is caused by faulty contractor work and occupier checks: 1, contractor is competent, and 2, work is completed properly. For 2, if work is simple, always need to check (Woodward v Mayor of Hastings); if work is technical, no need to check (Haseldine v Daw).

Remedies

• Damages (special - specific monetary costs before and during trial/ general - long term/future monetary and non-monetary costs).

• Personal injury and damage to property.

OLA 1984

Introduction

• Define tort (there is a danger due to the state of the premises that causes injury to the claimant, which the occupier should have reasonably protected the trespassers against), state tort contained in OLA 1984.

Define occupier

• Sufficient control/ownership of premises.

Define trespasser

• No permission or beyond permission (Tomlinson v Congleton).

Danger

• Must be a danger on the premises (a risk of injury).

• Must be due to the state of premises (S1(1), Siddorn v Patel).

• Premises are land, buildings, some structures.

Duty

S1(3) Occupier has a duty to trespassers if:

• occupier must be reasonably aware of danger (Swain v NRP);

• occupier must be reasonably aware trespasser is in vicinity of danger (Donoghue v Folkstone Properties);

• occupier may reasonably protect against the risk of danger.

Breach

S1(4) Occupier must take such reasonable care to ensure no one suffers due to the danger.

For children, more care is needed when they do not realise the risk (Keown v Coventry NHS).

Damage/Causation

Factual - but for test (Barnett v Chelsea and Kensington).

Legal - remoteness (how reasonably foreseeable) (The Wagon Mound). Egg shell can apply (Smith v Leech Brain).

Defences

• Volenti (S1(6)) (Tomlinson v Congleton).

• Contributory negligence (Revill v Newberry).

• Warnings and exclusion clauses (S1(5)) - occupier must give reasonable warning to discourage people from incurring the risk (Tomlinson v Congleton).

Remedies

• Damages (special - specific monetary costs before and during trial/ general - long term/future monetary and non-monetary costs).

• Personal injury.

Private nuisance

Introduction

• Define (is an indirect interference in the enjoyment of the claimant's land, due to a continuing state of affairs).

Define parties

• Claimant: must have a proprietary interest/legal interest in the land (Malone v Laskey). They cannot sue for personal injury (Hunter v Canary Wharf).

• Defendant: must be owner/creator/occupier of the nuisance or ought to have known/controlled the nuisance.

Nuisance

Two types of nuisance:

Physical nuisance - there is always a claim (St Helens).

Personal discomfort - there may be a claim if there is an unreasonable use of the land. Decided on balance by:

• Sensitivity - unreasonable if affects claimant's ordinary enjoyment (McKinnon Industries v Walker); not unreasonable if claimant is sensitive (Robinson v Kilvert).

• Locality - vice versa; not unreasonable if nuisance is 'common to the area' (St Helen's). 'What may be nuisance in Belgrave Square may not be so in Bermondsey' (Thesiger LJ, Sturges v Bridgeman).

• Duration - vice versa; not unreasonable if nuisance is a one-off/temporary/reasonable time/short time (Crown River Cruises v Kimbolton Fireworks).

• Malice - vice versa; unreasonable if nuisance has a malicious motive (Christie v Davey, Hollywood Silver Fox Farm v Emmett).

• Social benefit - may not be unreasonable if defendant is providing a benefit (Miller v Jackson).

• Recreational activities - may not be unreasonable if defendant interferes with 'things of delight' (Hunter v Canary Wharf, Network Rail v Morris).

Causation

• Nuisance must be reasonably foreseeable (Cambridge Water Co).

Strict liability

• Anyone who causes nuisance is liable.

Defences

• Volenti/consent.

• Prescription - claimant brings delayed claim (eg 20 years) (Sturges v Bridgeman).

• Statutory authority - when statute orders the action causing nuisance (Allen v Gulf Oil) or planning permission changes character of the neighbourhood (GBC v Medway Dock, conversely to Wheeler v Saunders).

Fake defences:

• 'Coming to the nuisance' is a fake defence (Coventry v Lawrence).

• Public utility is a fake defence (Bellew v Cement).

Remedies

• Injunctions (Kennaway v Thompson).

• Damages (Tetley v Chitty).

• Abatement.

Rylands v Fletcher

Introduction

• Define (an occupier of land who brings onto it and keeps there anything likely to do damage should it escape, will be liable for damage caused by such an escape - Blackburn J).

Define parties

• Claimant - must have proprietary interest (Transco v Stockport MBC).

• Defendant - must control the land.

Accumulation of dangerous thing

• Can be many things (Hale v Jenning).

• Must pose 'an exceptional risk if it escapes' (Lord Bingham, Transco).

Non-natural use of land

Natural uses:

• things occurring naturally eg thistles (Giles v Walker).

• domestic uses (Rickards v Lothian).

Non-natural uses:

• man-made reservoir (Rylands v Fletcher).

• storage of chemicals (Cambridge Water v EC Leather).

• anything 'extraordinary and unusual' (Lord Bingham, Transco).

Escape

• Dangerous thing must escape to an area outside the defendant's control (Read v Lyons).

• The thing/object must escape, not the result (Gore v Stannard).

Causation

• Damage caused by object escape must be reasonably foreseeable (Cambridge Water Co).

Strict liability

• Anyone who causes escape of thing is liable.

Defences

• Contributory negligence.

• Volenti/consent.

• Statutory authority - when statute authorises/obligates the activity (Green v Chelsea Waterworks).

• Act of stranger - when third party causes damage, independent from the defendant (Hale v Jennings).

• Act of God/Natural disasters - when natural forces cause escape, which the defendant couldn't guard against/foresee (Nichols v Marsland).

Remedies

• Injunctions.

• Damages (equivalent to cost of repair/replacement).

Vicarious liability

Introduction - define

Establish employee/relevant person has...