Barnett v Chelsea Hospital: Barnett poisoned, and the hospital refused to treat him, but he would have died anyway. No causation. Obiter Dicta The rules pertaining to causation are identical to those in criminal cases NEGLIGENCE: DUTY OF CARE Old leading case Donoghue v Stevenson 1932:
Modern leading case CAPARO TEST:
Caparo v Dickman 1990: Caparo read an article written by Dickman advising to buy a plot of land on the white cliffs of Dover. Caparo brought the land for £100,000 without checking turns out houses cannot be built on the land Ratio = Caparo sues Dickman and fails
1. Closeness in time, space and relationship
Nettleship v Weston: Learner drove over her instructor. Was proximate
Bourhill v Young: V walked around corner to witness motorcycle crash. Not proximate
Woman saw her family in hospital following car crash. Proximate by relationship
2. Was it foreseeable by the reasonable man that some harm would be caused by d s actions?
Kent v Griffiths 2000: Ambulance failed to arrive in reasonable time without valid excuse. Reasonably foreseeable
Roe v Minister of Health: Blood given to thousands was HIV infected.
3. Is it fair, just and reasonable to make the defendant pay or are there reasons not to do so?
Roe v Minister of Health: There was no test for HIV at the time so it would not have been fair
Hill v West Yorks: Not fair, just or reasonable to impose a duty on police to follow evidence competently and arrest the correct suspect. NEGLIGENCE: BREACH LEVEL OF DUTY OWED:
CHILDREN - The younger they are, the less they owe
Mullins v Richards: R not liable for plucking M eye out with a ruler
ORDINARY: ble man on the sense) -
Fardon v Harcourt 1932:
PROFESSIONAL: Anyone performing a professional duty should be more careful than the average normal man
Nettleship v Weston: D ran over driving instructor
MEDICAL:
Bolam v Bolitho: Bolam underwent conversion therapy, but this was not a recognised treatment to a minority of doctors.
Factors of Breach:
1. Probability how likely was it that harm would occur?
Bolton v Stone: Cricket ball knocked out of stadium and hit someone. Not probable
2. Magnitude how serious was the harm?
Paris v Stepney:
3. Practicality of Precautions were precautions taken?
Latimer v AEC: Despite C slipping on the floors, D had taken precautions by laying sawdust.
4. Benefits of risk were there any benefits to taking the risk?
Watt v Herts CC: Fireman had not secured jack causing further injuries to C but the emergence of saving her life from car accident outweighed this. NEGLIGENCE: DAMAGE FORESEEABILITY
WAS THE EXACT DAMAGE CAUSED PREDICTABLE BY THE REASONABLE MAN?
WAGON MOUND NO.2:
Oil rig spilt oil across water, causing fire to the nearby marina, then causing extensive damage. The amount of damage caused was unforeseeable so cannot work for negligence. PSYCHIATRIC HARM LORD JUSTICE BLACKHAWK 1880s -
DULIEU V WHITE: Drunk coachman horse + carriage into pub, nearly hitting Dulieu. This case separates victims into primary and secondary.
- Primary Victim: Someone who is involved they are nearly missed and so could countenance something happening to them or suffer physical injury that later turns into nervous shock. - Secondary Victim: Someone who witnessed the event but not closely involved.
BOURHILL V YOUNG: Additionally distinguishes a secondary victim from that of a primary. Despite being a secondary victim, she still cannot claim without close ties of love and affection.
PRIMARY VICTIM - Page v Smith
LEADING CASE: PAGE V SMITH 1996: Suffered from traumatic nightmares of his near-death experience in a car crash.
TEST: 1. An actual provable condition Beherans v Bertram's Circus 1957: incident at a circus left Beherans in grief but could not prove he had a condition
2. Suffered from normal negligence
Extra rules:
Rescuers:
Chadwick v British Rail: Saved victims of a train crash. Should have been a secondary victim but -
Near Missers:
Dilieu v White: Drunk coachman drove horse and carriage into pub window nearly missing Dilieu SECONDARY VICTIM Used when a person witnesses a traumatic event Hambrook v Stokes: Witnessed children almost get hit by a
TEST:
1. Must be a negligent act which caused harm
2. There must be evidence of injury (mental) - normal grief and anguish does not work: Hinz v Berry 1970: Morbid depression after witnessing a car crash. Proof would suffice this.
3. Claimant must pass the Alcock Criteria:
Alcock v CC West Yorks:
1. C must have ties of love + affection to V
2. C must have suffered mental injuries in the immediate aftermath
Jones Ex Parte: Mother suffered continuous shock of her daughter's death. Counts as immediate aftermath.
3. C must suffer this shock via their own unaided senses
4. If a person of reasonable fortitude would not have suffered, and as such the mental injury is nervous shock or hysteria, there is no claim Rothwell v Chemical inc. Plant and Co: No reasonable women would have got such an irrational fear from chemicals on clothes, so she could not claim.
BIZARRE CATEGORIES + SPECIAL RULES
1.
White v CC West Yorks 1998: Officers claimed they suffered from mental health issues for being responsible for large number of deaths. RESCUERS MUST PUT THEMSELVES AT RISK
2. Bystanders:
McFarlane v SS Caledonia 1994:
3. Property Owner:
Attia v British Gas 1987: BG blew her house up she had close ties to it. She could claim
4. Near Miss:
Reilly v NHS: Claustrophobia in elevator
5. Gradual Shock:
Sion v Hampstead HA 1994: No claim as son died after 14 days
BUT
North Glamorgan v Walters 2002:
enough to claim DEFENCES CONTRIBUTORY NEGLIGENCE THE LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945
Any amount of damages awarded can be reduced according to the extent to which the claimant contributed to their own harm. Amount of blame will be decided by the judge who will take of a %
Sayers v Harlow Urban District Council 1958:
Women got herself stuck in a toilet window. Court decided the council was liable for negligent maintenance but deducted 25% of her damages for her contribution.
Jayes v IMI (Kynoch) LTD 1985:
100% for chopping finger off by cleaning blade with guard off.
Froom v Butcher 1976:
20% reduction as no seatbelt was worn.
VOLENTI NON FIT INJURIA
Full defence: COMMON LAW = A full defence when C accepts a voluntary assumption of the risk of harm.
D has to show:
1. Knowledge of the precise risk involved:
Stermer v Lawson 1977: C not shown how to use bike so did not fully understand the risks involved
2. Voluntarily out of free will / choice:
Smith v Baker 1891: C told he had to work + later got injured. Had no choice
3. A voluntary acceptance of the risk:
Ogwo v Taylor 1987: C had a duty to attend burning building as a fireman so had to accept the risks involved
Extra rules know of them (Sidaway 1985) NUISANCE Unreasonable interference with another's enjoyment of their land.
Concerns people living in proximity of each other
Almost always involves rights to land Interfering with another's land by using your land unreasonably
ENTRY REQUIREMENTS CLAIMANT You must be an owner or a possessor or a beneficiary of land - Just living there does not count
Hunter v Canary Wharf 1997: Couldn't claim as her
boyfriend paid rent
1. Freeholder = mortgage owner
2. Leaseholder = rent tenant 3. License holder = buys for a short, set period of time (hotel)
DEFENDANT Must be on nearby land, and be either: a. Creating an interference b. Allowing an interference c. Adopting an interference Where D buys onto land, is responsible for land and discovers a nuisance but does not stop it
1. Creating an interference:
Christie v Davy: D made noise in response to excessive piano playing
Hunter v Canary Wharf
2. Allowing an interference:
Tetley v Chitty CC: D allowed go kart race around town
3. Adopting an interference:
Leaky v NT:
C farm flooded as monks did not fix a grate to stop blockage
THE INTERFERENCE
1. Cause damage
Leaky v NT: House damaged
Farm flooded with sewage
2. Cause a loss of amenity claimant unable to use or enjoy land
De Keyser: Roadworks outside hotel run at unreasonable times. Lack of sleep is a lack of amenity
Loss of amenity = noise, smell, smoke, lack of sleep, disruption to a business etc.
UNREASONABLE Court must attempt to balance the rights and interests of both parties and consider a wide range of factors.
1. Locality:
Sturges v Bridgeman 1879: Doctor builds waiting room next to factory.
2. Duration:
De Keyser: Building work every night
Crown River Cruises v Kimbolton Fireworks 1996: Fireworks damaged buildings as a one-off but planned every Friday
3. Sensitivity of the claimant will deny a claim:
Robinson v Kilvert 1889:
4. Malice: ANY DELIBERATE ACTIONS OF D AUTOMATICALLY SUCEEDS CLAIM:
Hollywood Silver Fox Farm v Emmett 1936: Disagreement so D shot shotgun every hour
5. Social benefit:
Miller v Jackson 1977: Cricket ground is a social benefit
Adams v Ursell 1913: Fish shop is a social benefit
DEFENCES Prescription Volenti Statutory authority Change of locational character
PRESCRIPTION If there has been a nuisance for 20 years and there has been no complaint no claim can be made
Sturges v Bridgeman: factory had been there for 100 years
STATUTORY AUTHORITY Government has given you permission in an act of parliament
Allan v Gulf Oil Refining 1981: GOR given governmental permission to build an oil refinery.
No claim can be made against them
Watson v Craft Promo Sport 2009: planning permission is not enough to run their new track
CHANGE OF LOCATIONAL CHARACTER
A change in how the area is used.
Gillingham v BC Medway and Chatham dock co. 1993: a naval port turned into a commercial one with residential roads being the access.
LEGAL ODDITY MOVING TO A NUISANCE IS NOT
ACTIONABLE You can claim even if you knew the nuisance existed prior to moving.
Coventry v Lawrence 2016: claimed against 75-year-old stadium.
RYLANDS V FLETCHER Case facts:
D employed independent contractors to construct a reservoir on their land. This was improperly done and so the reservoir collapsed causing damage to neighbouring land.
TEST:
1. A bringing of something onto the land and accumulating it (collecting)
Pontardwe v Moore-gwyn: Rocks on land previously. Not liable
Musgrove v Pandelis 1911: Collected petrol for motor car. Liable
2. Which amounts to a non-natural use of the land (non-natural)
Unusual way to use the land. Domestic use is natural
Sochaki v Sas 1947: Fire in a domestic context is natural
3. Thing is likely to do mischief if it escapes
Only the mischief needs to be likely not the escape
Schiffman: Flagpole escapes and causes damage. Likely to cause mischief
Hale v Jennings Bros: Child flown out of fairground ride into shop window
4. The thing must actually leave the land (a) AND cause foreseeable damage (b) (a) R v J Lyons: A munitions inspector was blown backwards in an explosion and landed 2 feet inside the gate. The munitions, though un-natural and dangerous, did not escape (b) Cambridge Water 1994: Poisoned 400 miles stretch of water. Not foreseeable.
DEFENCES ACT OF GOD:
An overwhelming force of nature (unforeseeable)
Nichols v Marshland: Heavy rainfall filled marsh - highest water level ever recorded unforeseeable.
ACT OF A WANDERING STRANGER:
Unknown person unleashes collected thing without permission
Perry v Kendricks: Explosion caused by trespassing children
Wheat v E.Lacon 1966: Landlord of pub rented a room and a guest fell down an unlit staircase and died
PREMISES:
S1(3) of the 1957 Act:
The act does not apply in every situation:
Revill v Newberry 1996: D was the occupier of the gun ON the land. Act can be applied when C is injured by a danger of the land.
OLA 1957 (VISITORS)
S1) Meaning of visitors + premises: Invitees (directly invited) Licensees (paid to be on the land) Contractual permission (being paid to be on the land + business) Statutory right of entry (legal right to be on land)
S2(2) Duty of Care in general to visitors:
1. Reasonably safe:
Rochester Cathedral v Debell 2016: Uneven floor is reasonably safe for a cathedral
Laverton v Kiapasha 2002: C slipped on mopped floors. D did not have to be absolutely safe
1. You can only claim if you are doing the purpose for which you were invited:
Whetherspoon v Calgarth 1987: not invite you to slide down
S2(3) a) Duty of Care over children:
are less careful, and the premises must be reasonably safe for children of THAT AGE
Glasgow CC v Taylor 1922: Poison berry bush next to play park. Kid ate them
Phibbs v Rochester PC 1955: Child fell down trench. Parents are expected to supervise
S2(3) b) Duty of Care over workmen:
Roles v Nathan 1963: 2 chimney sweepers found dead by CO2 and CO3 fumes. D not liable S2(4) DEFENCES
You hire someone who causes harm to another, you can blame them.
1. Reasonable to have given this contractor work (or could I do it myself?)
Haseldine: C killed in a broken lift. Highly specialist work, so D was reasonable in hiring a 20 -year-old company
2. Make sure that they are competent (reasonable checks)
Bottomley v Todmorton 2003: Contractors were amateur and unspecialists
3. I inspect and check that the work has been completed correctly
Woodward v Mayor of Hastings: Teachers not checked icy school steps
WARNING SIGNS A total defence: must be oral or written/ English or Latin/ Keeps you reasonably safe and is reasonably visible
Roe v Marrs 1990:
EXCLUSION CLAUSES Subject to The Unfair Contract Terms Act 1977 s2(1) OLA 1984 (TRESPASSERS) BROUGHT IN RESPONSE TO THE CASE OF BRB V HERRINGTON
TREATS ADULTS AND CHILDREN THE SAME
Baldaccino: Kid paralyzed by jumping off a light buoy
Keown: Kid jumps off unlocked fire escape
NO CASE
S1(3) This duty can be formed by:
a) Occupier must know of danger:
Rhind v Astbury: O unaware of fibreglass that impaled T. No DOC
b) Occupier must know trespassers are in vicinity:
Higgs v Foster: Police officer enters O land without authority. No DOC
c) Occupier must expect to protect:
Donoghue v Folkestone: T dived into harbour at midnight in the middle of winter. No DOC
Tomlinson v Congleton BC:
T jumped into a half-fences lake and injured himself.
Passed all of s1(3) but the HOL added:
1. Premises must only be reasonably safe for what it is
2. Trespassers are responsible for their own folly
S1(2) Property damage not covered only personal injury:
NO CASE VICARIOUS LIABILITY USED WHEN A NEGLIGENCE CLAIM IS BROUGHT AGAINST AN INDIVIDUAL WORKING FOR ANOTHER
Part 1 What is an employee?
The Control Test:
Is the master in control of the servant? Yewens v Noakes 1880
Lord Thankerton J in Short v Henderson LTD 1946:
1. Power to select servant
2. Right to control method of servant's labour 3. Right to suspend or dismiss the servant 4. Payment of wages
Hawley v Luminar 2006: A bouncer punched women in the throat. Club exercised so much control over him as their servant, they were liable
The Economic Reality (Multiple) Test:
Lord Bingham:
1. Who is in control of wages?
2. Who is in control of tools + labour? 3. Does the situation look a bit like an employment relationship?
Ready Mixed Concrete: Truck drivers paid by company but had to buy their own trucks + have business logo on it. Looks like employment.
Catholic Schools: Multiple child abuse claims. School was in control of the teachers wages and labour so they were employees
Part 2 Were they in the course of their employment?
1. Were they on a frolic of their own?
Hilton v Burton 1961: Employees crashed business van on their break. Not in the course of their employment
2. Were they acting against orders?
TRADITIONAL (OLD) LAW: Employer not liable if orders were explicit + ignored
Limbus v London General: Employer told drivers not to race when collecting passengers, but they still did.
NEW LAW: Employer remains liable if they financially benefitted from the act
Rose v Plenty: Milkman took a child on cart with him when told not to. Kid got ran over. Employer still made money
3. Were they involved in criminal activity? (employer only liable if activity relates directly to employment)
Lister v Hesley Hall 2002: Teacher abused autistic student. Relates to his employment. NEGLIGENT MISTATEMENT BAD ADVICE THAT LEADS TO LOSS
Caparo v Dickman 1990: Dickman gave Caparo false information that meant Caparo lost thousands.
Test:
Normal negligence test BUT proximity is a stronger test:
A close, professional relationship of trust
Claimant relied on the untrue advice
To prove a special relationship, HoL must prove:
Possession of special skill or expertise, or if the person is holding himself out to be an expert Advice must be communicated directly to the claimant (e.g., not in an article) There is no disclaimer to act as a defence Claimant must actually rely on advice, and not seek other advice
Chaudry v Probhakar 1988: C asked for P for advice in buying a car. He did not say he was an expert but was wrong. C sued as she relied on the relationship of trust.
PURE ECONOMIC LOSS
UNGURANTEED PROFIT
YOU CANNOT CLAIM UNGURANTEED PROFIT IN ENGLISH LAW -
Weller v Foot and Mouth Disease Research Institution 1966: Could claim for loss of cattle but not for the loss of profit he COULD have made had he sold the milk
A* Knowledge:
FRANCE
Le Bus Marseilles: Bus delayed by a car accident. Company claimed for all the seats on the bus and the stops
GERMANY
Miller Case: C claimed for an estimated number of sales after D negligently burnt his grain DAMAGES Monetary awards to put the person back into the position they would have been on had the negligent act not occurred.
Pecuniary: Awards directly calculated in relation to actual money lost
Property, loss of earnings, loss of contracts, future earnings
Loss of earnings = You can claim for wages + profit up to date of trial or future earnings but not easy to qualify for Doyle v Wallace 1990: Claimant could not be drama teacher due to a throat injury
Expenses incurred by another = Commonly associated with those who care for another Palmer v NHS:
Non-Pecuniary:
Pain and suffering: Any pain/ suffering (including mental) from injury
Loss of amenity: Anything that stops you from enjoying life the way you had before (Martin and Browne v Grey 1988)
Fatal accidents: Claims are inherited when the claimant dies. The Fatal Accidents Act 1976 maximum compensation of £10,000 for children
Special Damages: Awarded for anything suffered before the trial date (just pecuniary)
General Damages: Awarded for anything suffered from the trial date - (both)
Awarded either by:
Lump sum = Enough to support whole life if needed OR Structured settlement = Paid out over a period of time. Can be for life (Damages Act 1996) NUISANCE REMEDIES 1. Injunction - - e.g., restricting hours A* - If you fail to follow injunction Contempt of Court De Keyser / Crown River Cruises (Absolute injunction)
2. Damages money Leaky v NT / Sedleigh Denfield
3. Abatement Where D fails to follow injunction and C sues again.
Gives C legal power to come onto your land + prevent / remove / stop the nuisance Everett v Bristol City Council Refused to put handrail on dangerous staircase
