NEGLIGENCE SCENERIO
R- The first element that must be proven is that
there was a duty of care owed to the v. this has been developed through
judicial precedent and in Donoghue v Stevenson the neighbour principle
was established. However, this was unclear and therefore Caparo v
Dickman set out a 3-part test. Firstly, was the damage or harm
reasonably foreseeable. In Kent V Griffiths it was held it was reasonably
foreseeable claimant would suffer further illness if ambulance did not
arrive on time. The next part is whether there is a sufficiently proximate
relationship between claimant and d. In Bourhill v Young it was held d
was not proximate to calamint and did not owe a duty of care. The next
part to consider is whether it was fair just and reasonable to impose a
duty. In Hill v Chief Constable of West Yorkshire, it was held it was
not fair just and reasonable for police to impose duty of care to public. In
Robinson v Chief Constable of West Yorkshire, it was held that police
could still be liable for negligence resulting in personal injury and the Hill
case does not grant police general immunity.
R- The next element to consider is whether there
has been a breach of duty. Firstly, the REASONABLE MAN was considered
in Blyth v Birmingham Waterworks and held to be the ordinary person
performing the task competently. The reasonable professional was seen in
Bolam where it was asked; does d’s conduct fall below standard of
ordinary competent member of that profession and is there a substantial
body of opinion within the profession that would support d’s course of
action? The reasonable learner was looked at in Nettle v Weston where
it has held learners should be judged by standard of competent driver.
The reasonable child was looked at in Mullins v Richards, and it was
held a child should be judged as reasonable child of that age. Next the
SIZE OF THE RISK must be considered. In Bolton v Stone it was held
everything needed had been done and duty had not been breached. If
there is higher risk a greater standard of care is owed as seen in Hayley v
London Electricity Board. Next part to consider are adequate
precautions where court must consider the balance of risk involved
against cost and effort of taking adequate precautions to eliminate risk. In
Latimer v AEC Ltd it was held there was no requirement to eliminate
every possible risk to employees. SPECIAL CHARACTERISTIC MAY ALSO BE
CONSIDERED. In Paris v Stepheny Borough Council, it was held cost
and effort of providing goggles was very small compared to consequence
of risk .in emergency situations greater risks can be taken, and lower
standard of care is accepted. In Watt V Hertfordshire County Council,
it was held greater risks can be taken in emergency situations and utility
of saving life outweighed need to take precaution.
R- the third part is for claimant to prove that damage
suffered was caused by breach of duty and loss or damage is not to
remote. Factual causation is the starting point and is decided by the but
,for test – but for d’s act or omission the injury or damage would not occur,
and this was illustrated in the case of Barnett v Chelsea and
Kensington Hospital Management Committee. There must also be
legal causation, and the principle is whether damage was foreseeable
consequence of original act or omission. An intervening act can be – an
act of a third party where in McKew v Hollands it was held climbing
stairs unaided was novus actus intervenes, act of nature where in
Carslogie v Royal Norwegian Gov it was held storm was novus actus
intervenes and act of third party where in Knightly V Jones it was held
police officers order was novus actus intervenes . Damage must not be to
remote from breach of duty caused by d. In Wagon Mound it was held
damage was to remote from original negligent act. The test for
remoteness of damage is that injury must be reasonably foreseeable. In
Bradford v Robinson Rentals, it was held some injury from cold was
reasonably foreseeable. Lastly the eggshell skull rule should be
considered – this means d should take claimant as they find them and if
injury is more serious because of pre-existing condition d is still liable. In
Smith v Leech Brain, it was held burn was reasonably foreseeable
because of the eggshell rule.
OCCUPIERS LIABILITY 1957
SCENARIO
R – the definition of an occupier arises from case law.
In Wheat v Leacon an occupier is someone who has a degree of control
over the premises and there can be more than one occupier. In Bailey v
Armes it was held sometimes no one is in control. Premises has no full
statutory definition expect S.1(3)a of Occupier Liability Act 1957 which
states that this term includes land and buildings and any ‘fixed or
moveable structures’ including a ship on dry dock, a vehicle, a lift and a
ladder. In the case of visitors, it is defined under common law under
S.1(2) and the act only apply to lawful adult visitors. Permission can be
expressed which means they have been asked to enter premises however
visitor must be given reasonable time before they are considered a
trespasser (Lowery v Walker) If it is implied it means they may imply
they have permission to be there e.g. entering a shop. S.2(1) states the
occupier owes a duty of care to all his lawful visitors. S2(2) states
occupier owes a common duty of care and has to take reasonable care to
make visitor feel reasonably safe for purpose of their visits. In Laverton v
Kiapasha Takeaway it was held shop keepers had taken reasonable
care to ensure customers were safe.
CHILDREN
, R- S2(3) of OLA 1957 cat a states occupier must be
ready for children to be less prepared than adults and as a result must be
reasonably safe for a child of that age. There is a special duty owed to
children and the standard of care is measure subjectively. Occupier should
guard against any kind of allurements which was held in Glasgow
Corporation v Taylor. In Phillips v Rochester Corporation, it was
held where very young children are injured courts will be reluctant to find
occupier liable as child should be under supervision. In Jolley v London
borough of Sutton, it was held there is no liability if damage suffered is
not foreseeable.
WORKERS
R- an occupier will owe a tradesman coming onto
premises the common duty of care.S.2(3)b of the occupier’s liability act
states that the occupier must guard against any special risks to ensure it
is reasonably safe to carry out a trade visit. In Roles v Nathan occupier
is not liable where tradesmen fail to guard against any risks they should
have known about or expected to know about due to their job. Occupier
may avoid liability if damage was caused by independent contractor if 3
factors are satisfied which was set out under S.2(4). In Hazeldene V
Daw & Son it was held it must be reasonable to give work to independent
contractor. In Bottomley v Todmorden it was held contractor hired must
be competent to carry out tasks and occupier should ensure contractor
has insurance. In Woodward v MH it was held reasonable steps should
be taken to ensure work has been done properly, by employing a
specialist to check worker has met this condition.
DEFENCES-
VOLENTI (CONSENT); it is a full defence and applies to occupiers
and negligence. If successful d does not have to pay damages as
claimant accepted to run risk of injury while on premises.
CONTRIBUTARY NEGLIGENCE; this partial defence and set out in
Law Reform Act 1945. Occupier may argue that claimant is partly
responsible for injures. If successful amount of compensation is
reduced.
EXCLUSION CLASUES; by s2(1) of 1957 act occupier can, in
written or oral form, exclude or limit liability caused to visitor. S65
of Consumer Rights Acts 2015 if there are such clauses in
warning notice, they are ineffective and cannot operate as defence
if consumer is injured.
WARNING NOTICES: this can be complete defence. In s2(4)(a) of
1957 Act warning is ineffective unless ‘in all circumstances it was
enough to enable visitor to be reasonably safe’. If premises is
extremely dangerous according to Rae v Mars visitor should be
given specific notice to danger. However, if danger is obvious and
R- The first element that must be proven is that
there was a duty of care owed to the v. this has been developed through
judicial precedent and in Donoghue v Stevenson the neighbour principle
was established. However, this was unclear and therefore Caparo v
Dickman set out a 3-part test. Firstly, was the damage or harm
reasonably foreseeable. In Kent V Griffiths it was held it was reasonably
foreseeable claimant would suffer further illness if ambulance did not
arrive on time. The next part is whether there is a sufficiently proximate
relationship between claimant and d. In Bourhill v Young it was held d
was not proximate to calamint and did not owe a duty of care. The next
part to consider is whether it was fair just and reasonable to impose a
duty. In Hill v Chief Constable of West Yorkshire, it was held it was
not fair just and reasonable for police to impose duty of care to public. In
Robinson v Chief Constable of West Yorkshire, it was held that police
could still be liable for negligence resulting in personal injury and the Hill
case does not grant police general immunity.
R- The next element to consider is whether there
has been a breach of duty. Firstly, the REASONABLE MAN was considered
in Blyth v Birmingham Waterworks and held to be the ordinary person
performing the task competently. The reasonable professional was seen in
Bolam where it was asked; does d’s conduct fall below standard of
ordinary competent member of that profession and is there a substantial
body of opinion within the profession that would support d’s course of
action? The reasonable learner was looked at in Nettle v Weston where
it has held learners should be judged by standard of competent driver.
The reasonable child was looked at in Mullins v Richards, and it was
held a child should be judged as reasonable child of that age. Next the
SIZE OF THE RISK must be considered. In Bolton v Stone it was held
everything needed had been done and duty had not been breached. If
there is higher risk a greater standard of care is owed as seen in Hayley v
London Electricity Board. Next part to consider are adequate
precautions where court must consider the balance of risk involved
against cost and effort of taking adequate precautions to eliminate risk. In
Latimer v AEC Ltd it was held there was no requirement to eliminate
every possible risk to employees. SPECIAL CHARACTERISTIC MAY ALSO BE
CONSIDERED. In Paris v Stepheny Borough Council, it was held cost
and effort of providing goggles was very small compared to consequence
of risk .in emergency situations greater risks can be taken, and lower
standard of care is accepted. In Watt V Hertfordshire County Council,
it was held greater risks can be taken in emergency situations and utility
of saving life outweighed need to take precaution.
R- the third part is for claimant to prove that damage
suffered was caused by breach of duty and loss or damage is not to
remote. Factual causation is the starting point and is decided by the but
,for test – but for d’s act or omission the injury or damage would not occur,
and this was illustrated in the case of Barnett v Chelsea and
Kensington Hospital Management Committee. There must also be
legal causation, and the principle is whether damage was foreseeable
consequence of original act or omission. An intervening act can be – an
act of a third party where in McKew v Hollands it was held climbing
stairs unaided was novus actus intervenes, act of nature where in
Carslogie v Royal Norwegian Gov it was held storm was novus actus
intervenes and act of third party where in Knightly V Jones it was held
police officers order was novus actus intervenes . Damage must not be to
remote from breach of duty caused by d. In Wagon Mound it was held
damage was to remote from original negligent act. The test for
remoteness of damage is that injury must be reasonably foreseeable. In
Bradford v Robinson Rentals, it was held some injury from cold was
reasonably foreseeable. Lastly the eggshell skull rule should be
considered – this means d should take claimant as they find them and if
injury is more serious because of pre-existing condition d is still liable. In
Smith v Leech Brain, it was held burn was reasonably foreseeable
because of the eggshell rule.
OCCUPIERS LIABILITY 1957
SCENARIO
R – the definition of an occupier arises from case law.
In Wheat v Leacon an occupier is someone who has a degree of control
over the premises and there can be more than one occupier. In Bailey v
Armes it was held sometimes no one is in control. Premises has no full
statutory definition expect S.1(3)a of Occupier Liability Act 1957 which
states that this term includes land and buildings and any ‘fixed or
moveable structures’ including a ship on dry dock, a vehicle, a lift and a
ladder. In the case of visitors, it is defined under common law under
S.1(2) and the act only apply to lawful adult visitors. Permission can be
expressed which means they have been asked to enter premises however
visitor must be given reasonable time before they are considered a
trespasser (Lowery v Walker) If it is implied it means they may imply
they have permission to be there e.g. entering a shop. S.2(1) states the
occupier owes a duty of care to all his lawful visitors. S2(2) states
occupier owes a common duty of care and has to take reasonable care to
make visitor feel reasonably safe for purpose of their visits. In Laverton v
Kiapasha Takeaway it was held shop keepers had taken reasonable
care to ensure customers were safe.
CHILDREN
, R- S2(3) of OLA 1957 cat a states occupier must be
ready for children to be less prepared than adults and as a result must be
reasonably safe for a child of that age. There is a special duty owed to
children and the standard of care is measure subjectively. Occupier should
guard against any kind of allurements which was held in Glasgow
Corporation v Taylor. In Phillips v Rochester Corporation, it was
held where very young children are injured courts will be reluctant to find
occupier liable as child should be under supervision. In Jolley v London
borough of Sutton, it was held there is no liability if damage suffered is
not foreseeable.
WORKERS
R- an occupier will owe a tradesman coming onto
premises the common duty of care.S.2(3)b of the occupier’s liability act
states that the occupier must guard against any special risks to ensure it
is reasonably safe to carry out a trade visit. In Roles v Nathan occupier
is not liable where tradesmen fail to guard against any risks they should
have known about or expected to know about due to their job. Occupier
may avoid liability if damage was caused by independent contractor if 3
factors are satisfied which was set out under S.2(4). In Hazeldene V
Daw & Son it was held it must be reasonable to give work to independent
contractor. In Bottomley v Todmorden it was held contractor hired must
be competent to carry out tasks and occupier should ensure contractor
has insurance. In Woodward v MH it was held reasonable steps should
be taken to ensure work has been done properly, by employing a
specialist to check worker has met this condition.
DEFENCES-
VOLENTI (CONSENT); it is a full defence and applies to occupiers
and negligence. If successful d does not have to pay damages as
claimant accepted to run risk of injury while on premises.
CONTRIBUTARY NEGLIGENCE; this partial defence and set out in
Law Reform Act 1945. Occupier may argue that claimant is partly
responsible for injures. If successful amount of compensation is
reduced.
EXCLUSION CLASUES; by s2(1) of 1957 act occupier can, in
written or oral form, exclude or limit liability caused to visitor. S65
of Consumer Rights Acts 2015 if there are such clauses in
warning notice, they are ineffective and cannot operate as defence
if consumer is injured.
WARNING NOTICES: this can be complete defence. In s2(4)(a) of
1957 Act warning is ineffective unless ‘in all circumstances it was
enough to enable visitor to be reasonably safe’. If premises is
extremely dangerous according to Rae v Mars visitor should be
given specific notice to danger. However, if danger is obvious and
