Structure Package - Tort Law

• Duty of Care


  The first point to consider is whether D owes a duty of care to C
• Caparo three-stage test


  • Only needs to be applied in new and novel situations
  • Is damage or harm reasonably foreseeable?
  • Is there proximity in space, time or relationship?
  • Is it fair, just and reasonable to impose a duty of care?
• Existing duty of care

  • Donoghue v Stevenson: 'Lord Atkin's neighbour principle'
  • Bourhill v Young
• Children


  • Mullin v Richards
• Risk Factors


  • Size of risk - Bolton v Stone
  • Special Characteristics - Paris v Stephney
  • Appropriate precautions - Latimer
  • Unknown Risks - Rowe v Minister of Health
  • Public Benefit - Watt v Hertfordshire CC
• Recognised Medical Condition

  McLoughlin V O'Brien: "not merely grief, distress or any other normal emotion, but a positive psychiatric illness."
• Sudden Onset

  Sion v HHA (1994) - The psychiatric harm must arise from a sudden impact of witnessing a horrifying incident and not be gradual
• Threshold Test

  • Objective test - is it reasonably foreseeable that person of normal fortitude in C's position would suffer psychiatric harm?
  • Lord Wilberforce - Bourhill v Young: does it go beyond the mere calamities of life?
• Pure Economic Loss cannot be recovered as a result of a negligence act, only loss which is directly consequential can
• Special Relationship


  Based on the skill of the advice giver, which creates a proximity between parties
• Special Relationship


  • Yianni v Edwin Evans - expert in property valuation
  • Mutual and Citizens Life v Evatt - insurance salesman not an investment expert
  • Chaudhary v Prabhakar - friend claiming to be a car expert
• Reasonable Reliance

  Advice must be given in circumstances where the person giving the advice knows that the other person will be relying on that advice and it is reasonable for them to do so
• Reasonable Reliance


  • Chaudhary v Prabakar - not normally in social situation
  • Smith v Eric S Bush - more expense more likely court will expect C to seek further advice
• Resulting Loss


  The claimant must show that he acted on the advice, and it worked to their detriment
• Occupiers Liability 1957


  S.2(1) OLA 1957 an occupier owes the common law duty of care to all lawful visitors. Claimant can recover compensation for physical injury and property damage.
• Premises


  S.1(3) OLA 1957 "fixed or movable structure including any vessel, vehicle and aircraft"
• Premises

  • Wheeler v Copas - ladder
  • Ogwo v Taylor - danger must come from the state of the premises
• Occupier


  • Wheat v E Lacon - can be more than one person who has control
• Common Law Duty of Care

  S.2(2) OLA 1957 take such care as is reasonable in the circumstances to keep visitor reasonably safe
• Breach


  If they fail to keep visitor safe, they are in breach: compare to the ordinary and competent occupier
• Liability to Children


  • S.2(3)(a) - "occupier must be prepared for children to be less careful than adults"
  • Glasgow Corporation v Taylor - concept of allurement
  • Phipps v Rochester - expect young children to be supervised by parents
• Liability for Independent Contractors


  • S.2(4) - An occupier will not be liable if: 1. It is reasonable to use an independent contractor, 2. The contractor is competent, 3. The occupier checks the work where reasonable to do so
• Defences and Remedies


  • Consent
  • Contributory Negligence
  • Exclusion clauses
  • Warning Signs S.2(4)
• Duty


  • Rhind v Astbury Water Park - occupier was not liable because they did not know of the dangerous object
  • Ratcliffe v McConnell - obvious risk of danger due to drinking not state of premises
  • Higgs v Foster - unaware of police trespass
• Nature of Duty


  S.1(4) OLA 1984 - this is essentially breach: compare to a reasonable occupier, they will be in breach of their duty where they have not taken 'reasonable' steps to prevent personal injury
• Defences and Remedies

  • S.1(5) OLA 1984 - the duty can be discharged, there will be no breach if a warning sign has been used and this is reasonable given the particular danger.
  • Contributory Negligence also available for OLA
  • Volenti S.1(6) OLA 1984
• Private Nuisance


  An unlawful and indirect interference with a person's use or enjoyment of land. The law is concerned with damage or loss of amenity in respect of the claimant's land, not personal injury.
• Loss of amenity


  • The court will attempt to balance the conflicting interests of the neighbours in a nuisance action
  • They will expect neighbours to experience a certain amount of 'give and take'
  • Consider whether it is reasonable for the claimant to have to suffer the particular interference and whether it is excessive
• Remedies


  • Injunction
  • General damages
• Rylands v Fletcher


  A strict liability tort concerned with damage caused to neighbouring land as a result of an escape
• Actions regarded as in the course of employment

  • Authorised acts
  • Forbidden Acts
  • Authorised acts carried out in a negligent manner
• Close Connection Test


  • What is the nature of the job?
  • Was there a sufficient connection between that job and the wrongful conduct to make it right for the employer to be held liable under the principle of social justice?
• Remedies in Vicarious Liability


  Damages from Employer if VL or from employee if VL is not satisfied
• Contributory Negligence

  • Jayes – damages can be reduced up to 100%
  • Stinton v Stinton – damages reduced by 1/3 for accepting a lift from a drink drive
  • Froom v Butcher – damages reduced by 20% for not wearing a seatbelt
• Volenti (Consent)


  A full defence to tort, meaning 'to a willing person no injury is done'
• Remedies


  • Damages for the injury or the property damage, to put C back in the position they would have been in prior to the negligence
  • Pecuniary Loss
  • Non-pecuniary loss
  • Injunctions