Acing the SQE/Tort Law

Core principles of tort

Negligence

A tort involving a breach of a legal duty to take care, resulting in damage to another. • Three core elements: 1. Duty of care 2. Breach of duty 3. Causation and damage (not covered here)

duty of care (standard (general and professional)) and breach

A. General Duty of Care • Established Principle: Donoghue v Stevenson – “Neighbour Principle” • Must take reasonable care to avoid acts or omissions likely to injure your “neighbour” (persons who are closely and directly affected by your actions).

B. Caparo Test (when no established precedent) • Caparo Industries v Dickman [1990]: 1. Foreseeability of harm 2. Proximity (relationship between parties) 3. Fair, just and reasonable to impose duty

C. Types of Duty Situations • Omissions: Generally no duty unless: • Assumption of responsibility (Stansbie v Troman) • Special relationship (Home Office v Dorset Yacht Co.) • Third parties: Limited duties, unless special circumstances apply • Public bodies: Often complex – subject to Caparo test III. Standard of Care (Breach)

A. General Standard • Objective test: Reasonable person standard (Blyth v Birmingham Waterworks) • Not based on individual skill or knowledge

B. Professional Standard • Bolam Test (Bolam v Friern Hospital): • Not negligent if conduct is in accordance with a practice accepted by a responsible body of professionals in that field • Bolitho refinement: • Court can reject body of opinion if logically indefensible

C. Learners & Inexperienced Defendants • Still held to standard of the reasonable competent person in that role • E.g. a learner driver held to standard of competent driver (Nettleship v Weston)

D. Children • Held to standard of reasonable child of same age (Mullin v Richards) IV. Breach of Duty

A. Test: Reasonable Person Test • Would the reasonable person have foreseen the risk and taken precautions?

B. Factors Considered in Breach 1. Magnitude of risk (Bolton v Stone – small risk, no breach) 2. Seriousness of potential harm (Paris v Stepney – more serious consequences = higher standard) 3. Cost and practicality of precautions (Latimer v AEC) 4. Social utility of defendant’s conduct (Watt v Hertfordshire CC) 5. Common practice and compliance – may support or undermine breach finding

causation (single and multiple)

I. Overview of Causation • Causation: Establishing a link between the defendant’s breach of duty and the claimant’s harm. • Key principle: The defendant’s breach must have caused the claimant’s damage (not just the act itself).

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II. Single Causation

A. But For Test (Factual Causation) • Test: Would the damage have occurred but for the defendant’s breach? • If yes, the breach is a cause of the harm. • If no, no causation.

Case example: Barnett v Chelsea & Kensington Hospital Management Committee (1969) – Doctor’s failure to diagnose was not the cause of death because the patient would have died anyway.

B. Intervening Acts (Novus Actus Interveniens) • Novus Actus: A new intervening act that breaks the chain of causation. • Test: Would the harm have occurred even if the defendant had not been negligent?

Case example: McKew v Holland (1969) – Injury caused by the claimant’s own actions (jumping stairs) after a previous injury.

C. Probabilistic Causation • In some cases, the defendant may be liable even when they cannot be shown to be the sole cause, but their actions increased the probability of harm.

Case example: Wilsher v Essex Area Health Authority (1988) – Medical negligence leading to injury; causation found based on probability, not certainty.

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III. Multiple Causation

A. Multiple Defendants (Joint Causation) • Where two or more defendants contribute to the claimant’s harm. • The claimant must show that each defendant’s act materially contributed to the harm. • If both defendants’ actions contributed independently, they can both be held liable.

Case example: Bonnington Castings Ltd v Wardlaw (1956) – Causation found where both defendants contributed to the claimant’s illness.

B. Material Contribution Test • Test: When the harm is caused by multiple factors, courts use the material contribution test. • A defendant will be liable if their breach made a material contribution to the harm, even if it cannot be proven as the sole cause.

Case example: McGhee v National Coal Board (1973) – Dust exposure in a mine; breach made a material contribution to claimant’s dermatitis.

C. Alternative Causes (Multiple Potential Causes) • Multiple potential causes, but only one is responsible for the harm. • Burden of proof may shift to defendants to show that their actions were not the cause of the harm. • Court applies a “but for” test where one cause is identifiable and certain.

Case example: Williams v Bermuda Hospitals Board (2007) – Where multiple defendants are involved, the claimant may establish causation if it is shown that the defendant’s breach materially increased the risk.

D. Multiple and Uncertain Causes (Loss of Chance) • Where a claimant cannot prove which cause was responsible, but can show they lost a chance due to the defendant’s actions.

Case example: Allied Maples Group Ltd v Simmons & Simmons (1995) – Causation found where a lost opportunity could be quantified.

IV. Tests of Causation in Multiple Causation 1. But for Test: Used when there is a single or joint cause. 2. Material Contribution Test: Used when the defendant’s act contributes to the harm but is not the sole cause. 3. Loss of Chance: Used when multiple possible causes make it difficult to prove specific causation, but a chance was lost due to the defendant’s negligence.

remoteness and loss

I. Overview of Remoteness and Loss • Remoteness: Determines whether the type of loss or damage suffered by the claimant is too remote to be recoverable in negligence. • Loss: Refers to the actual damage suffered by the claimant as a result of the defendant’s negligence.

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II. Remoteness of Damage

A. Test for Remoteness – The “Eggshell Skull” Rule • Test: Whether the defendant should be held liable for all consequences of their negligence, no matter how unexpected or severe. • Rule: The defendant is liable for all damage resulting from their negligence, even if the precise injury was unforeseeable.

Case example: Smith v Leech Brain & Co (1962) – A relatively minor burn led to a fatal cancer due to the claimant’s pre-existing weakness. The defendant was held liable for the full extent of the damage.

B. The Wagon Mound Test (Scope of Liability) • Test: Whether the type of damage was foreseeable at the time of the negligent act. • Rule: A defendant is only liable for harm that is foreseeable, even if the precise way in which the damage occurs is not predictable.

Case example: The Wagon Mound (No 1) (1961) – Damage from fire was not foreseeable, and thus the defendant was not liable for the fire, even though the spill of oil was foreseeable.

C. Foreseeability of Damage • Damage Type vs. Manner: The defendant is not liable for all consequences, only those that are foreseeable in type, though how the damage occurs may differ. • Type of harm must be foreseeable. • Manner of occurrence may not need to be foreseeable.

Case example: Doughty v Turner Manufacturing (1964) – The defendant could not foresee that a lid would cause the explosion; thus, they were not liable for the specific manner of damage.

D. The “Take Your Victim As You Find Him” Rule • Eggshell Skull Rule: The defendant must take the victim as they find them. If the claimant has a pre-existing condition that worsens due to the defendant’s negligence, the defendant is still fully liable.

Case example: Smith v Leech Brain & Co (1962) – A burn triggered a cancerous condition that was not foreseen. The defendant was still fully liable for the loss.

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III. Loss (Damages)

A. Types of Loss • Personal Injury: Physical harm, psychiatric injury, or illness caused by the defendant’s actions. • Property Damage: Loss or destruction of the claimant’s property. • Economic Loss: Financial loss arising from the defendant’s negligence (in certain cases, economic loss is not recoverable).

B. Categories of Economic Loss 1. Pure Economic Loss: • Generally not recoverable in negligence unless the defendant has a special relationship with the claimant. • Example: Spartan Steel v Martin (1973) – Economic loss caused by damaged goods was not recoverable. 2. Consequential Economic Loss: • Economic loss that is a direct result of property damage or personal injury can be recovered.

Case example: The Aliakmon (1986) – Loss of use and profits due to damaged goods was recoverable.

C. Nervous Shock and Psychiatric Injury • Injury: Psychiatric injury (nervous shock) may be recoverable, but there are strict rules about who can claim for such loss. • Primary Victims: Those directly involved in the incident can recover for psychiatric injury. • Secondary Victims: Those who witness the incident or its aftermath must satisfy a control mechanism (proximity to the event, relationship to the primary victim, and whether the injury was foreseeable).

Case example: Page v Smith (1996) – A claimant who suffered psychiatric injury from a car accident was allowed to claim even though they were not physically injured.

claims for pure economic loss arising from either a negligent act or misstatement

Generally, a person is only liable for the direct physical harm caused by their negligence. However, in some circumstances, a person may be liable for pure economic loss arising from either a negligent act or misstatement.

1. Negligent act: In cases where the negligent act itself causes physical damage or personal injury, a person may also suffer economic loss as a result. For example, if a building contractor negligently constructs a building and as a result the building collapses, the owner of the building may suffer economic loss, such as loss of rent or the cost of repairs. In such cases, the owner may be able to claim compensation for pure economic loss.

1. Misstatement: A person may also be liable for pure economic loss arising from a negligent misstatement. A negligent misstatement is a statement made by a person who owes a duty of care to another person, which is incorrect and causes economic loss to the recipient of the statement. The duty of care may arise from a contractual relationship, a professional relationship or the assumption of responsibility by the maker of the statement. For example, if an accountant negligently provides incorrect financial advice to a client and as a result, the client suffers economic loss, such as a loss of profits, the client may be able to claim compensation for pure economic loss.

claims for psychiatric harm

The claimant must have a close tie of love and affection with the victim of the event and claims for pure psychiatric harm (i.e. harm not accompanied by physical injury), the claimant must be able to demonstrate that they fall within a recognized category of individuals who are owed a duty of care in such cases.

==== employers’ primary liability (operation and effect of the common law principles) ====I. Overview of Employer’s Primary Liability • Employer’s Primary Liability: An employer may be directly liable for acts of negligence occurring within the scope of employment. • The liability can arise from the employer’s own negligence or vicariously for the actions of employees.

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II. Employer’s Direct (Primary) Liability

A. Negligent Hiring, Training, or Supervision • Employer’s Duty of Care: Employers owe a duty of care to their employees to provide: • Competent staff • Proper training • Adequate supervision • Test for Employer’s Liability: The employer will be directly liable if they negligently hire, train, or supervise an employee, and this causes harm to others.

Case example: Hollis v Vabu (2001) – An employer was held liable for the actions of a delivery driver after failing to provide adequate supervision, even though the driver was not acting in the course of employment at the time of the incident.

B. Failure to Provide a Safe Working Environment • Duty to Ensure Safety: Employers must provide a safe working environment to employees, which includes ensuring that proper equipment and procedures are in place to avoid accidents. • Breaches of Health and Safety Regulations: An employer who breaches specific health and safety laws may be directly liable under the Health and Safety at Work Act 1974 or equivalent.

Case example: Wilson v Tyneside Window Cleaning Co (1958) – Employer was liable for failing to provide a safe system of work leading to an injury.

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III. Vicarious Liability (Employer’s Liability for Employees’ Actions)

A. Principles of Vicarious Liability • Definition: An employer may be held liable for torts committed by an employee during the course of employment, even if the employer is not personally at fault. • Key Question: Was the employee acting within the scope of their employment when the tort was committed?

B. “Course of Employment” Test 1. Definition: Whether an employee’s act is within the scope of their employment depends on whether the act was: • Authorized: Acts the employer has explicitly permitted. • Unauthorized but closely related: Acts that are not explicitly authorized but are closely linked to tasks assigned by the employer.

Case example: Lister v Hesley Hall (2001) – Employer was held vicariously liable for the actions of an employee (a warden) who committed a tort while acting in the course of his employment, even though the act was unauthorized. 2. Frolic vs. Deviation: • Frolic: If the employee’s act is entirely unrelated to employment, vicarious liability does not apply (e.g., personal actions). • Deviation: If the employee’s act is a minor deviation from their duties, the employer may still be vicariously liable.

Case example: Century Insurance v Northern Ireland Road Transport Board (1942) – Employee was on a “frolic” (driving recklessly), and the employer was not liable. Case example: Rose v Plenty (1976) – Employer held liable where the employee’s negligent act was closely related to employment.

C. Employer’s Knowledge & Control • Employer may be vicariously liable even if they were unaware of the employee’s actions, provided the actions were within the course of employment.

Case example: Mersey Docks & Harbour Board v Coggins & Griffiths (1947) – Employer was liable for the actions of an independent contractor if the employee’s duties fell within the employer’s control.

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IV. Defenses to Employer Liability

A. Employee Acting Outside the Scope of Employment • If the employee is acting completely outside the scope of their employment, the employer may not be vicariously liable.

Case example: Mattis v Pollock (2003) – An employer was not vicariously liable for an employee’s assault on a customer when the act was not part of the job duties.

B. Contributory Negligence • An employee may contribute to the injury, but this usually does not bar the employer’s liability (though it may reduce damages).

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V. Key Statutory Provisions for Employer Liability • Health and Safety at Work Act 1974: • Employers have a statutory duty to ensure the health, safety, and welfare of employees while at work. • Breaching these duties can lead to direct liability under statute. • The Equality Act 2010: • Employers can be directly liable for discrimination and harassment in the workplace.

Defences

consent

I. Overview of Consent as a Defense • Consent: A valid defense in tort law where the claimant voluntarily agrees to the defendant’s actions, thereby negating the defendant’s liability. • Consent can be raised in various torts, especially in cases of battery, assault, false imprisonment, and negligence.

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II. Key Principles of Consent

A. Elements of Consent 1. Voluntary Agreement: The claimant must freely agree to the defendant’s conduct. 2. Knowledge: The claimant must have knowledge of the nature and risks involved in the act they are consenting to. 3. Capacity: The claimant must have the mental and legal capacity to consent (e.g., no minors or individuals lacking mental capacity). 4. Scope of Consent: The consent must be within the scope of the defendant’s actions; it cannot cover actions outside of what was agreed upon.

B. Types of Consent • Express Consent: Direct, explicit agreement by the claimant (e.g., signing a consent form). • Implied Consent: Consent inferred from the claimant’s conduct or circumstances (e.g., participation in a contact sport).

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III. Types of Tort Where Consent May Be a Defense

A. Battery (Torts Involving Direct Harm or Contact) • Consent as a Defense to Battery: If the claimant consents to physical contact, the defendant is not liable for battery. • Scope of Consent: Consent can be limited in scope. If the defendant exceeds the boundaries of consent, it may no longer be valid.

Case example: Re T (1992) – A person cannot consent to actions that would lead to death or serious injury if they lack full capacity to consent.

B. Assault (Threatening Physical Harm) • Consent as a Defense to Assault: If the claimant consents to the threat or apprehension of immediate physical contact, there may be no liability for assault.

Case example: R v Brown (1993) – Consent to harm during sadomasochistic practices was not recognized as valid consent in the criminal context, but in tort law, it could negate liability if the harm was within agreed limits.

C. False Imprisonment • Consent to Detention: If the claimant voluntarily consents to being detained or confined, false imprisonment cannot be claimed.

Case example: Herd v Weardale Steel Co (1915) – A miner’s consent to be transported in the mine shaft precluded his claim for false imprisonment when the lift was delayed.

D. Negligence (Medical Treatment/Consent) • Informed Consent in Medical Negligence: In medical negligence cases, a defendant may argue that the claimant consented to the medical treatment, even if negligence occurred. • Informed Consent: The claimant must be fully informed of the risks associated with the procedure and must voluntarily agree to it. • Failure to Inform: If the claimant was not adequately informed of risks, consent may not be valid, and the defendant could still be liable.

Case example: Chester v Afshar (2004) – A surgeon’s failure to inform the patient of the risk of paralysis was held to render the patient’s consent invalid.

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IV. Limits to the Defense of Consent

A. Lack of Full Knowledge or Capacity • Lack of Understanding: Consent is not valid if the claimant does not fully understand the nature or risks involved. • Example: Re T (1992) – Consent was not valid because the claimant was not capable of understanding the implications of the procedure due to mental incapacity.

B. Exceeding the Scope of Consent • Actions Beyond What Was Agreed: Consent is only valid for actions within the agreed scope. If the defendant goes beyond the limits of consent, liability may arise. • Example: R v Brown (1993) – Consent to harm within sadomasochistic acts did not extend to actions causing permanent injury.

C. Illegality or Public Policy Considerations • Illegal Acts: Consent cannot be used as a defense for illegal acts or activities that are contrary to public policy, such as serious injury or harm. • Example: R v Brown (1993) – Consent was not valid in cases involving serious bodily harm or where acts contravened public policy.

D. Coercion or Duress • Coercion: Consent is not valid if it is given under pressure, threat, or duress, meaning the claimant is not truly consenting freely.

Case example: R v Williams (1992) – Consent obtained under duress (in this case, a fraudulent explanation by a defendant) was not valid.

contributory negligence

Contributory negligence is a legal principle that reduces the amount of damages that a claimant may be awarded if they have contributed to their own injury or loss through their own negligence. In other words, if the claimant's own actions or failure to act played a role in causing their injury or loss, the amount of damages that they may be awarded may be reduced to reflect their own fault. In order for contributory negligence to apply under English law, the claimant's negligence must actually contribute to the damage.

illegality

Illegality: A defense where the claimant’s own illegal act prevents them from claiming for a tort, particularly when the claimant’s illegal conduct is directly related to the harm suffered. • The Illegality Defense is based on public policy considerations—if the claimant is involved in illegal conduct, they may be barred from seeking a remedy for the damage caused by their illegal acts.

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II. Key Principles of the Illegality Defense

A. General Rule • Illegality Principle: A claimant cannot recover damages for a tort when the claim arises out of their own illegal conduct. This is known as the Ex Turpi Causa principle, which states “no one can profit from their own wrong.” • Example: A claimant injured while committing a crime may not be able to sue for their injuries.

B. Public Policy Considerations • Rationale: This defense serves to avoid granting benefits to those who engage in illegal conduct, as it would encourage illegal behavior and undermine the legal system. • Courts assess whether allowing the claim would contradict the public interest or encourage illegal activity.

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III. Key Case Law and Legal Tests for Illegality Defense

A. Key Test for Illegality: The “Causation” and “Connection” Tests 1. Causation Test: • To successfully raise the illegality defense, there must be a causal link between the claimant’s illegal act and the harm they are seeking compensation for. • If the claimant’s illegal act was too remote from the injury, the defense may not apply. • Case Example: Clunis v Camden and Islington Health Authority (1998) – A claimant was not allowed to claim damages after killing someone during a psychotic episode, as the act of violence was directly linked to his own illegal behavior (a crime). 2. Connection Test: • The illegal conduct must have a sufficient connection to the tort, and the tort must not be too remote from the claimant’s illegal act. • Case Example: Leslie v The Registrar of the Court of Appeal (1999) – A man who caused harm while carrying out an illegal activity was denied a claim for damages. The claim was deemed to be too closely linked to the illegal act.

B. Public Policy Considerations in Illegality • Courts also examine whether allowing the claim would: • Encourage or reward illegal activities. • Be against public morals or social justice. • Case Example: Tinsley v Milligan (1994) – The claimant, involved in a fraudulent property transaction, was initially allowed to claim damages despite her illegal act, as the public policy concern was outweighed by the claimant’s legitimate claim. However, this was later reconsidered under a stricter test.

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IV. Exceptions to the Illegality Defense

A. Claimant Not at Fault for the Illegal Act • If the claimant was forced or coerced into committing an illegal act, the defense of illegality may not apply. • Case Example: Gray v Thames Trains (2009) – A man was not barred from claiming compensation for injuries caused by a train crash after his own illegal conduct (killing someone while driving) because he was found to be a victim of his own mental illness.

B. Illegal Act Not Central to the Claim • The claimant may still be able to claim if the illegal act is incidental or not central to the claim. If the tort is not directly related to the illegal act, the illegality defense may not be applicable. • Case Example: Revill v Newbery (1996) – A claimant injured during a burglary was allowed to sue for his injuries, even though he was committing an illegal act, because the defendant’s actions were an independent tort (negligence) and not a consequence of the claimant’s own illegal act.

C. Public Policy Exceptions • In some cases, even though an illegal act is involved, public policy may favor the claimant’s right to seek redress. For example, where the illegal act does not involve serious criminal conduct or where the defendant’s actions were more reprehensible than the claimant’s. • Case Example: Vaughan v Vaughan (1952) – The court allowed the claim of an injured spouse, even though the claimant had been involved in a domestic violence incident.

necessity

I. Overview of Necessity as a Defense • Necessity: A defense in tort law that justifies an otherwise unlawful act when it was carried out to prevent a greater harm or danger. • This defense operates on the principle that in certain situations, individuals may be excused from liability for torts if their actions were necessary to avoid a more serious harm. • Necessity applies in both public necessity (protecting the public) and private necessity (protecting private interests).

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II. Key Principles of Necessity

A. General Concept of Necessity • The defense of necessity is based on the principle that a person may do what would normally be a tortious act (such as trespass or damage to property) in order to prevent a greater harm. • Proportionality: The harm caused by the defendant’s action must be proportional to the harm it is trying to avoid. • Immediate Threat: The action must be taken in response to an imminent threat or danger.

B. Necessity as a Defense to Various Torts 1. Trespass to Land • A person may enter land without permission to prevent damage to their own or others’ property, or to stop an imminent danger. 2. Trespass to Goods • A person may interfere with another’s property to prevent greater harm, such as when property is at risk of being damaged or destroyed. 3. Nuisance • Necessary actions taken to prevent harm (e.g., removing an obstruction or repairing an emergency situation) may be excused even if they would otherwise be deemed a nuisance.

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III. Types of Necessity

A. Public Necessity • Definition: This occurs when the defendant’s actions are intended to protect the public or prevent public harm. • Examples: A person breaking into a building to save someone trapped inside, or actions taken during a fire to prevent further damage to neighboring properties.

Case Example: Southwark LBC v Williams (1971) – The defense of necessity failed because the defendant’s actions were not in response to an imminent public threat.

B. Private Necessity • Definition: This occurs when the defendant’s actions are intended to protect their own interests or property, even if it causes damage to another person’s property. • Examples: Taking someone else’s boat to escape a storm, or breaking into a house to prevent a fire from spreading.

Case Example: Cooper v Ward (1929) – A person was allowed to use the necessity defense when they damaged another’s property in order to prevent the spread of fire to their own property.

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IV. Conditions for the Necessity Defense

A. Imminence of the Threat • The harm or danger being avoided must be imminent or immediate, meaning the act is necessary right now to prevent a greater harm from occurring. Case Example: Re A (Conjoined Twins) (2000) – The defense of necessity was allowed to justify surgery to separate conjoined twins to prevent one from dying, even though it caused the death of the other.

B. Proportionality of the Act • The harm caused by the defendant’s action must not exceed the harm that was being prevented. • Example: Damaging a property to prevent a fire from spreading to others may be permissible, but setting a building on fire to save a smaller structure may be disproportionate. Case Example: The Queen v Dudley and Stephens (1884) – Necessity was not allowed as a defense to murder, as killing another person to survive at sea was not proportional to the threat faced.

C. No Legal Alternatives • The defense of necessity is only available if there were no legal alternatives to the defendant’s actions. • If the defendant could have taken a lawful action to avoid the harm, necessity cannot be claimed. Case Example: R v Howe (1987) – Necessity was not a defense for a man who murdered his accomplice during a robbery, even though he claimed it was to avoid being killed.

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V. Limitations of the Necessity Defense

A. Necessity Cannot Justify Murder • Necessity cannot be used to justify causing the death of another person, even in dire circumstances. • The courts will not allow the defense of necessity to override the sanctity of life. Case Example: R v Dudley and Stephens (1884) – Necessity was not available as a defense when the defendants killed a fellow shipwrecked man to survive, as it was not a proportional response to the danger.

B. Exceeding the Scope of Necessity • If the actions taken by the defendant go beyond what was necessary to prevent the harm, the defense of necessity will fail. Case Example: Winkfield v White (1909) – The court found that a person acting in their own defense (such as protecting property) was liable when they exceeded the necessary force.

Principles of vicarious liability

The "sufficiently close connection" test determines whether an employer can be held vicariously liable for the tortuous (wrongful) acts committed by its employees. The test is applied to establish whether there is a sufficient connection between the employment and the tort so that it is just and reasonable to impose liability on the employer.

Occupiers’ Liability

legal requirements for a claim under the Occupiers’ Liability Act 1957 (in relation to visitors) and the Occupiers’ Liability Act 1984 (in relation to non-visitors)

I. Overview • Occupiers’ liability: A statutory form of negligence relating to the duty of care owed by those who control premises (occupiers) to people entering the premises. • Covered by: • Occupiers’ Liability Act 1957 (OLA 1957) – concerns lawful visitors • Occupiers’ Liability Act 1984 (OLA 1984) – concerns non-visitors (i.e. trespassers)

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II. Occupiers’ Liability Act 1957 – Lawful Visitors

A. Who is an Occupier? • Not defined in the Act – common law applies. • Occupier = person in control of the premises, not necessarily the owner. • Test from Wheat v Lacon [1966]: Sufficient control over the premises = duty of care.

B. What is a Premises? • Defined broadly in the Act (s.1(3)): Includes land, buildings, fixed and moveable structures (e.g., ladders, scaffolding).

C. Who is a Lawful Visitor? • Those with: • Express or implied permission. • Legal right to enter (e.g., postal workers, police). • Contractual entrants (e.g., ticket holders). • Invitees or licensees.

D. Duty Owed (s.2(2)) • Take reasonable care to ensure the visitor is reasonably safe for the purpose for which they are on the premises. • It is about safety of the visitor, not the premises.

E. Special Categories of Visitors 1. Children (s.2(3)(a)) • Higher standard of care expected – premises must be reasonably safe for a child of that age. • Case: Glasgow Corporation v Taylor (1922) – council liable when child ate poisonous berries. 2. Experts/Independent Contractors (s.2(3)(b)) • Occupier may expect skilled professionals to guard against their own risks. • Case: Roles v Nathan (1963) – chimney sweeps assumed to know risks of carbon monoxide. 3. Work Done by Independent Contractors (s.2(4)(b)) • Occupier may avoid liability if: • It was reasonable to entrust the work. • A competent contractor was chosen. • Work was checked (if reasonable to do so). • Case: Haseldine v Daw (1941)

F. Warnings (s.2(4)(a)) • May discharge the duty if effective to make the visitor reasonably safe. • Case: Rae v Mars (1990) – warning insufficient for a hidden pit in a dark shed.

G. Exclusion of Liability • Possible via clear notice or contract, but: • Subject to Unfair Contract Terms Act 1977 for business premises (cannot exclude liability for personal injury or death due to negligence).

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III. Occupiers’ Liability Act 1984 – Trespassers (Non-Visitors)

A. Who is a Non-Visitor? • Includes: • Trespassers (no permission to be on premises). • People who exceed their permission (e.g., go into out-of-bounds areas). • Unlawful entrants (e.g., burglars, explorers).

B. Duty Under s.1(3)

Occupier owes a limited duty of care if: 1. They are aware of the danger or have reasonable grounds to believe it exists. 2. They know or have reasonable grounds to believe that someone may come into the vicinity of the danger. 3. It is reasonable to offer protection in the circumstances.

C. Standard of Care (s.1(4)) • Duty to take reasonable care to prevent injury from the danger. • No duty to ensure safety—just to avoid injury from known risks.

D. Warnings • A warning may be enough to discharge duty if effective in the circumstances.

E. Consent (Volenti) • Often used as a defense for trespassers: if the person accepts the risk, liability may not arise. • Case: Ratcliff v McConnell (1999) – no duty owed to student who climbed a fence and dived into a pool at night.

F. Children as Trespassers • Still owed a duty under OLA 1984, but courts consider recklessness and age. • Case: Tomlinson v Congleton BC (2003) – adult voluntarily dived into a shallow lake; claim failed.

defences

II. Defences under OLA 1957 (Visitors)

1. Warnings (s.2(4)(a)) • A warning can discharge the duty of care if it makes the visitor reasonably safe. • Must be clear, visible, and sufficient given the nature of the danger. • Ineffective for hidden or serious dangers unless accompanied by barriers or further precautions.

Case: Rae v Mars – Warning was inadequate due to the extreme danger (pit in dark room). Case: Staples v West Dorset DC – Obvious risk (slippery algae on a sea wall) did not require warning.

2. Independent Contractors (s.2(4)(b)) • Occupier may not be liable for danger caused by an independent contractor if: 1. It was reasonable to entrust the work; 2. A competent contractor was selected; 3. The occupier checked the work, where reasonable.

Case: Haseldine v Daw – Occupier not liable for negligent lift repair by expert contractors. Case: Woodward v Mayor of Hastings – Occupier liable when school cleaner left steps icy and dangerous.

3. Contributory Negligence • Claimant’s own negligence contributes to the harm. • Damages are reduced proportionally under the Law Reform (Contributory Negligence) Act 1945.

Case: Tomlinson v Congleton BC – Though decided under OLA 1984, Lord Hoffmann commented on contributory negligence by voluntarily assuming obvious risk.

III. Defences under OLA 1984 (Non-Visitors / Trespassers)

1. Warnings (s.1(5)) • A warning can discharge duty if it is enough to enable the trespasser to avoid the danger. • The standard is lower than under the 1957 Act.

Case: Westwood v Post Office – Locked door and warning sufficient for an adult employee.

exclusion of liability

• Occupier may attempt to exclude or limit liability through signs or contractual terms. • Governed by: • Unfair Contract Terms Act 1977 (UCTA) for business premises: • Cannot exclude liability for death or personal injury caused by negligence (s.2(1)). • Other losses may be excluded if reasonable (s.2(2)).

Product liability

principles in negligence

Overview • Product liability in negligence arises where a defective product causes foreseeable harm. • A manufacturer (or others in the supply chain) may owe a duty of care to a consumer or end user. • This sits alongside statutory product liability (e.g. Consumer Protection Act 1987) but focuses on common law negligence. II. Duty of Care

1. Manufacturer’s Duty • A manufacturer owes a duty to take reasonable care to ensure that a product is free from defects that could cause injury or damage.

Leading Case: Donoghue v Stevenson

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

• “Neighbour”: Anyone who is closely and directly affected by your actions.

2. Others Who May Owe a Duty • Not just manufacturers: • Assemblers, repairers, retailers, installers, or importers may owe duties depending on their role. • Employers providing equipment to employees. • Professionals giving advice on products.

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III. Breach of Duty • The claimant must prove that the defendant fell below the standard of care expected of a reasonable manufacturer/supplier.

Evidence of breach may include: • Poor quality control. • Inadequate testing or failure to inspect. • Failure to warn of dangers or provide instructions.

Case: Grant v Australian Knitting Mills

Manufacturer liable for defective underwear that caused dermatitis – breach of duty by allowing sulphite residue.

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IV. Causation and Loss

1. Causation • Must show that the defect caused the injury using standard negligence principles: • Factual causation – But for test. • Legal causation – No novus actus interveniens.

2. Damage • Claimant must have suffered personal injury or property damage (not pure economic loss in negligence).

Case: Muirhead v Industrial Tank Specialties

Pure economic loss (e.g. cost of faulty tanks) not recoverable in negligence – only damage to property or persons.

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V. Defences • Contributory negligence • Volenti non fit injuria (consent) • Intervening acts breaking the chain of causation • Statutory defences may apply under parallel CPA claims (not in common law negligence).

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VI. Limitation • Under the Limitation Act 1980: • 6 years from the date of damage. • 3 years from date of knowledge for personal injury claims. • Possibility of longstop date (15 years under CPA but not in negligence).

principles of the Consumer Protection Act 1987

Comparison with Consumer Protection Act 1987 (CPA)

Negligence	CPA 1987
Fault-based - must prove breach of duty	CPA 1987
Covers personal injury and property damage	Same (with conditions)
No recovery for pure economic loss	No recovery for pure economic loss
Defendant can use standard negligence defences	CPA has statutory defences (e.g. compliance with law, development risk)

Nuisance

public and private nuisance

1. A public nuisance arises from an act that endangers the life, health, property, morals or comfort of the public or obstructs the public in the exercise or enjoyment of rights common to all. A public nuisance is actionable in tort and can also be a criminal offence.

1. A private nuisance usually is caused by a person doing something on his own land, which he is lawfully entitled to do but which becomes a nuisance when the consequences of his act extend to the land of his neighbour by, for example, causing physical damage. A private nuisance is actionable in tort.

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the rule in Rylands v Fletcher

This is a form of strict liability, in that the defendant may be liable in the absence of any negligent conduct on their part.

remedies (damages and injunctions) and defences

I. Remedies in Private Nuisance

After establishing liability, the claimant may seek one or more of the following remedies:

A. Damages • Aim: To compensate for harm (not punish). • May cover: • Loss of enjoyment of land • Physical damage to property • Economic loss flowing from the nuisance

Case: Hunter v Canary Wharf – Damages for interference with TV signal not allowed as it didn’t affect the land itself.

Case: Dennis v Ministry of Defence – Damages awarded instead of injunction due to public interest (RAF training).

B. Injunctions • Court order preventing continuation of the nuisance. • Equitable remedy – at the court’s discretion.

May be: • Prohibitory – stops the nuisance. • Mandatory – requires action to remedy it. • Partial or conditional – limits rather than stops activity.

Case: Kennaway v Thompson – Partial injunction issued to restrict motorboat racing (not ban it entirely).

Test for injunction: From Shelfer v City of London Electric Lighting Co Four criteria for awarding damages instead of an injunction: 1. Injury to claimant’s legal rights is small 2. Capable of being estimated in money 3. Can be adequately compensated 4. Unfair to grant an injunction

C. Abatement • Claimant takes reasonable steps to stop the nuisance (e.g., cutting overhanging branches). • Must not cause damage and should give notice if possible.

II. Defences to Private Nuisance

A. Prescription • Nuisance carried on for 20 years without interruption or objection may give rise to a right to continue. • Time runs from when the nuisance began (not property ownership).

Case: Sturges v Bridgman – No prescription as nuisance began when doctor’s consulting room was built.

B. Statutory Authority • If the nuisance-causing activity is authorised by statute, this may provide a defence. • Applies if carried out reasonably and within statutory limits.

Case: Allen v Gulf Oil – Nuisance from oil refinery authorised by Parliament.

C. Contributory Negligence • May reduce damages if claimant contributed to the harm (though rarely pleaded in nuisance).

D. Act of a Third Party or Nature • Defendant not liable if nuisance caused by unforeseeable actions of a third party or natural event (unless they fail to take reasonable steps once aware).

Case: Sedleigh-Denfield v O’Callaghan – Liability arose when defendant knew of nuisance and failed to act.

E. Public Benefit / Reasonableness • Court may weigh interests – complete defence not always available but may influence remedy. • Often used to argue injunction should be denied.

Case: Miller v Jackson – Cricket club allowed to continue with damages awarded instead of injunction.

Not Valid Defences: • “Coming to the nuisance”: Not a defence.

Case: Sturges v Bridgman – Claimant moved next to nuisance; still entitled to sue.