Analyzing a Tort Problem
1) Identify the claimant and the defendant
➢ X v X
2) Identify the nature of the harm suffered
3) Consider which torts may be relevant
➢ Negligence, Defamation
4) Apply the elements of that tort
5) Consider any defenses
6) Consider available remedies
Negligence Checklist
1) Duty of Care
➢ Established Duty
L
➢ Novel Duty
● Test for duty in a novel situation
★ Donoghue v Stevenson
➢ Breach of Duty
GD
★ Caparo Test
● Test for breach of duty
★ The ‘Reasonable Person’ Test - Blyth v Birmingham Waterworks
(1856) 11 Ex 781
➢ Causation of Damage
● Causation in Fact
★ Basic Test
○ The ‘But For’ Test
★ Modified Test - Material Contribution
ce
○ Bonnington Castings Ltd v Wardlaw [1956] AC 613
○ McGhee v National Coal Board [1973] 1 WLR 1
● New Intervening Act
★ Act of third party test
○ Contrast Knightley v Johns [1982] 1 WLR 349 and Rouse v
Squires [1973] QB 889
★ Act of claimant test
A
○ McKew v Holland & Hannen & Cubitts (Scotland) Ltd
[1969] 3 All ER 1621
○ Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006
● Remoteness of Damage
★ Basic Test
○ the Wagon Mound (No 1)
(i) The ‘similar in type’ rule
■ Hughes v Lord Advocate [1963] 1 All ER
705
(ii) The ‘egg-shell skull’ rule
■ Robinson v Post Office [1974] 1 WLR 1176
, Whenever you consider a possible claim in the tort of Negligence, you should always consider
the following elements
1) Did the defendant owe the claimant a duty of care?
2) Was the defendant in breach of that duty?
3) Did the defendant’s breach of duty cause damage to the claimant?
4) Are any defenses available to the defendant?
Economic Loss Caused by Acquiring a Defective Item of Property
➢ Murphy v Brentwood District Council
Economic Loss Unconnected to Physical Damage to the Claimant’s Person or Property
➢ Economic loss caused by damage to the property of a third party
● Spartan Steel v Martin
L
➢ Economic loss caused where there is no physical damage
● No physical damage: actions
○ Weller v Foot and Mouth
GD
● No physical damage: statements
○ Hedley Byrne v Heller; Caparo v Dickman
● Extension of the special relationship
○ Spring v Guardian; White v Jones
Workshop 2 Activity 2
Dean v Police
Occupier’s Liability Act 1957 Occupier’s Liability Act 1984
ce
Duty of Care Section 2(2) Section 1(1) and 1(3)
Duty owed to? His visitors Other than his visitors
A
June 2018 Mock Exam Question 3 - (Occupier’s Liability)
Identification of Claimant:
Peter suffered damage with his injured hand
Tariq wants Peter to pay for the broken lock
Helena wants to claim for Tariq ruining her red dress
Imogen suffered damage due to Helena’s scream
, Identification of the defendant:
Potentially, Peter and Tariq
What harm has C suffered?
Peter has suffered some injuries to his hand
Tariq has a broken lock
Helena has a permanent stain in her new red dress
Imogen has torn clothes and cuts on her hands
L
Identification of Tort:
GD
Occupier’s Liability 1957 and 1948, regular Negligence and Trespass to Land
Peter v Tariq - Injury to Peter’s Hand
The floorboards collapsed causing the table rock to graze Peter’s hand. Tariq has a liability as
the owner of the cafe to Peter a visitor in his cafe. Peter should consider a claim under
Occupier’s Liability 1984. To establish occupier’s liability, we will have to establish that Peter has
suffered loss due to the state of the premises, Tariq is an occupier, Peter is a visitor and that
Tariq failed to take reasonable care for Peter’s safety.
Peter got injured in Tariq’s cafe, under Section 1(3)(a) OLA 1957, ‘premises’ is very widely
defined. It includes open land as well as fixed or moveable structures. It also specifically
ce
includes vessels, vehicles or aircrafts, Tariq’s cafe is considered a premise.
The main test for whether someone is an occupier is whether they have a sufficient degree of
control over the relevant premises. In Wheat v Lacon & Co, Tariq would be the occupier in the
cafe as he has sufficient control over the premises.
A
The 1957 Act imposes a duty on occupiers towards their ‘visitors’. The duty contained in OLA
1957 only applies to visitors, visitors are those persons who have express or implied permission
to be on the occupier’s land. Tariq is a visitor since he is a visitor in Tariq’s cafe, he is within his
rights to sit in the cafe’s main area.
Under Section 2(2) of the OLA 1957, an occupier owes all visitors the common duty of care in
all circumstances to see that the visitor is reasonably safe in using the premises for the
purposes for which he is permitted to be there. Has Tariq discharged his duty of care? Tariq has
given a warning on the table saying ‘warning-do not use this table’. The warning doesn’t seem
to prevent Peter from getting hurt, since he sat down at the table anyway, under Section 2(4) of
the OLA 1957, warnings will not be sufficient to enable the occupier to escape liability. The
1) Identify the claimant and the defendant
➢ X v X
2) Identify the nature of the harm suffered
3) Consider which torts may be relevant
➢ Negligence, Defamation
4) Apply the elements of that tort
5) Consider any defenses
6) Consider available remedies
Negligence Checklist
1) Duty of Care
➢ Established Duty
L
➢ Novel Duty
● Test for duty in a novel situation
★ Donoghue v Stevenson
➢ Breach of Duty
GD
★ Caparo Test
● Test for breach of duty
★ The ‘Reasonable Person’ Test - Blyth v Birmingham Waterworks
(1856) 11 Ex 781
➢ Causation of Damage
● Causation in Fact
★ Basic Test
○ The ‘But For’ Test
★ Modified Test - Material Contribution
ce
○ Bonnington Castings Ltd v Wardlaw [1956] AC 613
○ McGhee v National Coal Board [1973] 1 WLR 1
● New Intervening Act
★ Act of third party test
○ Contrast Knightley v Johns [1982] 1 WLR 349 and Rouse v
Squires [1973] QB 889
★ Act of claimant test
A
○ McKew v Holland & Hannen & Cubitts (Scotland) Ltd
[1969] 3 All ER 1621
○ Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006
● Remoteness of Damage
★ Basic Test
○ the Wagon Mound (No 1)
(i) The ‘similar in type’ rule
■ Hughes v Lord Advocate [1963] 1 All ER
705
(ii) The ‘egg-shell skull’ rule
■ Robinson v Post Office [1974] 1 WLR 1176
, Whenever you consider a possible claim in the tort of Negligence, you should always consider
the following elements
1) Did the defendant owe the claimant a duty of care?
2) Was the defendant in breach of that duty?
3) Did the defendant’s breach of duty cause damage to the claimant?
4) Are any defenses available to the defendant?
Economic Loss Caused by Acquiring a Defective Item of Property
➢ Murphy v Brentwood District Council
Economic Loss Unconnected to Physical Damage to the Claimant’s Person or Property
➢ Economic loss caused by damage to the property of a third party
● Spartan Steel v Martin
L
➢ Economic loss caused where there is no physical damage
● No physical damage: actions
○ Weller v Foot and Mouth
GD
● No physical damage: statements
○ Hedley Byrne v Heller; Caparo v Dickman
● Extension of the special relationship
○ Spring v Guardian; White v Jones
Workshop 2 Activity 2
Dean v Police
Occupier’s Liability Act 1957 Occupier’s Liability Act 1984
ce
Duty of Care Section 2(2) Section 1(1) and 1(3)
Duty owed to? His visitors Other than his visitors
A
June 2018 Mock Exam Question 3 - (Occupier’s Liability)
Identification of Claimant:
Peter suffered damage with his injured hand
Tariq wants Peter to pay for the broken lock
Helena wants to claim for Tariq ruining her red dress
Imogen suffered damage due to Helena’s scream
, Identification of the defendant:
Potentially, Peter and Tariq
What harm has C suffered?
Peter has suffered some injuries to his hand
Tariq has a broken lock
Helena has a permanent stain in her new red dress
Imogen has torn clothes and cuts on her hands
L
Identification of Tort:
GD
Occupier’s Liability 1957 and 1948, regular Negligence and Trespass to Land
Peter v Tariq - Injury to Peter’s Hand
The floorboards collapsed causing the table rock to graze Peter’s hand. Tariq has a liability as
the owner of the cafe to Peter a visitor in his cafe. Peter should consider a claim under
Occupier’s Liability 1984. To establish occupier’s liability, we will have to establish that Peter has
suffered loss due to the state of the premises, Tariq is an occupier, Peter is a visitor and that
Tariq failed to take reasonable care for Peter’s safety.
Peter got injured in Tariq’s cafe, under Section 1(3)(a) OLA 1957, ‘premises’ is very widely
defined. It includes open land as well as fixed or moveable structures. It also specifically
ce
includes vessels, vehicles or aircrafts, Tariq’s cafe is considered a premise.
The main test for whether someone is an occupier is whether they have a sufficient degree of
control over the relevant premises. In Wheat v Lacon & Co, Tariq would be the occupier in the
cafe as he has sufficient control over the premises.
A
The 1957 Act imposes a duty on occupiers towards their ‘visitors’. The duty contained in OLA
1957 only applies to visitors, visitors are those persons who have express or implied permission
to be on the occupier’s land. Tariq is a visitor since he is a visitor in Tariq’s cafe, he is within his
rights to sit in the cafe’s main area.
Under Section 2(2) of the OLA 1957, an occupier owes all visitors the common duty of care in
all circumstances to see that the visitor is reasonably safe in using the premises for the
purposes for which he is permitted to be there. Has Tariq discharged his duty of care? Tariq has
given a warning on the table saying ‘warning-do not use this table’. The warning doesn’t seem
to prevent Peter from getting hurt, since he sat down at the table anyway, under Section 2(4) of
the OLA 1957, warnings will not be sufficient to enable the occupier to escape liability. The
