Elements + Cases/statute
Tort Ao1
Negligence (Not everything here may apply to a scenario!! pick the things relevant to the specific
specific.
Negligence can arise from either act or omission, there are three elements that are needed in order for
the defendant to be found liable of negligence :
- The defendant must owe the claimant a duty of care- In the case iN Donoghue v Stevenson
the neighbour principle was established, this principle means- anyone you ought to bear in mind,
who could be injured by your act or omission
- However the Caparo Test was developed following the case of Caparo v Dickman to cover novel
situations there are three elements.1. damage or harm was reasonably foreseeable- Kent v
Griffens, 2. whether there was close proximity in relationship either in space time or relationship.-
Bourhill v Young, 3. whether it was fair just or reasonable.- Hill v Chief Constable of West
Yorkshire.
- Breach of Duty- Once it has been shown that a duty of care is owed, the claimant has to prove
that the duty of care has been broken. - The standard is objective - that of the 'reasonable man'
- The reasonable man - vaughan v Menlove
- The reasonable learner - Nettleship v Western (learners are judged at the standard of the
competent more experienced person)
- The reasonable child - The standard is that of a reasonable person of the defendant's
age at the time of the accident. This is shown by the case of Mullin v Richards
- The reasonable professional - does the defendant's conduct fall below the standard of the
ordinary competent member of that profession - is there a substantial body of opinion
within the profession that would support the course of action taken by the defendant -
Bolam
- The next thing to consider is if there were any risk factors- when the court decides whether there
has been a breach of duty, it considers whether the standard of care should be raised or lowered.
Montgomery v Lanarkshire.
- Special characteristics- Paris
- The size of the risk- The principle that applies here is that the higher the risk of injury, the
greater the precautions that need to be taken to prevent injury. Bolton if there is higher
risk the standard of care his higher- Haley
- Adequate precautions - Latimer
- Unknown risks- if the risk is unknown then there is no breach- Roe v Minister of health
- Policy- If there is an emergency, greater risks can be taken and a lower standard of care
can be accepted- Watt v Hertfordshire
- Damage- claimant needs to prove that the damage was caused by the breach of duty and that
the loss of damage isn’t too remote
- Causation- Factual causation- the defendant caused the damage- But for test- Barnett v Chelsea.
- Legal causation- intervening act- An act of the claimant- Mckew v Hollands, An act of Nature -
Carslogie, a third party Knoghtly v Johns
- Remoteness of Damage - the damage must not be too remote from the breach of duty by the
defendant- Wagon mound - the test is whether it is reasonably foreseeable for example d will be
liable if injury was foreseeable, even if the way it would happen was not -Bradford
- The eggshell skull rule- Smith v Leech Brain co take v as you find them
, Discuss any defences? Contributory negligence or VOLENTI
Occupiers Liability
Occupiers liability Act 1957
OCCUPIER- Potential defendants are the owners or tenants of the premises. As there is no statutory
definition of who qualifies as an occupier the test for deciding is found in case law. Generally an occupier
is someone who has control over the land, Wheat v E Lacon
PREMISES -there is no full statutory definition of premises except in s1(3)(a) of the 1957 act which says it
can be any ‘fixed or movable structure, including any vessel, vehicle and aircraft. Examples are Vehicle,
ladder, lift.
A LAWFUL VISITOR-
- invitees- persons who have been invited to enter the premises
Licensee- persons who have express or implied permission e,g in Lowery v Walker,
those with contractual permission-, eg a person who bought a ticket,
those who have been given statutory rights- eg a metre reader.
- Where a person exceeds their permission they have for being on the premises, they may become
a trespasser as quotes in the Calgarth
- ADULTS- The occupier does not have to make the visitor completely safe but in the premises -
only to do what is reasonable- Laverton v Kiapasha Takeaway. The common duty of care does
not extend to pure accidents as seen in the case of Cole v Davis.
- CHILDREN- The occupier owes children the common duty of care, however, additional special
duty owed to child visitors. For example, Occupiers should guard against any kind of allurements
which place children at risk of harm. Glasgow Corporation v Taylor, Where children are injured
the courts are reluctant to find the occupier liable as the child should be supervised by their
parents or guardians,- Phipps v Rochester. If an allurement exists, there will be no liability on the
occupier if the damage or injury suffered is not foreseeable.
- WORKERS- The occupier will not be liable where workers do not guard against risks which they
should know about, or be expected to know about. Roles v Nathan.
- WORK OF INDEPENDENT CONTRACTORS- Three requirements apply and all have to be
satisfied 1. Reasonable for the occupier to have given the work to the contractor Hazeldine v
Daw, 2. The contractor who is hired must be competent to carry out the task Bottomley v
Todmorden,
3. The occupier must check the work was properly done Woodward v Mayor of Hastings.
- DEFENCES- Contributory negligence, the claimant was partly responsible for injuries.
- Volenti- defendant will not be liable to pay any damages to the claimant as C was to blame.
Exclusion clauses- This means that the occupier will, in an oral or written warning, be able to limit
or exclude completely their liability for any injury caused to the visitor.
- Warning Notices- If there is a notice of a danger, this can be a complete defence for the
occupier. A warning can be oral or written. If the premises are extremely dangerous then the
warning should be a specific notice as in the case of Rae.
