CASES FOR TORT

Donoghue v Stevenson (1932)

Snail in bottom of ginger beer. Women sued manufacturer, Lord Aitken Neighbour test. Must take reasonable care to avoid acts or omissions which you can reasonably foresee as likely to injure your neighbour. Neighbours are people who are so directly affected by my act that I ought to reasonably have them in contemplation.

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TORT- duty of care

Caparo v Dickman (1990)

(Built on Donoghue). Negligent Auditors. Established the three part test:

1)      Was damage reasonably foreseeable

2)      Was there proximity between the claimant and defendant

3)      Is it fair, just and reasonable to impose a duty of care?

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TORT- duty of care

Donoghue v Stevenson (1932)

Snail in bottom of ginger beer. Women sued manufacturer, Lord Aitken Neighbour test. Must take reasonable care to avoid acts or omissions which you can reasonably foresee as likely to injure your neighbour. Neighbours are people who are so directly affected by my act that I ought to reasonably have them in contemplation.

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TORT- duty of care

Kent V Griffiths (2000)

Ambulance delayed without good reason. Reasonably foreseeable that the claimant would suffer further harm as a result. Ambulance authorities were liable.

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TORT- duty of care

Jolley v London Borough of Sutton (2000)

Abandoned boat. Boys attempted to repair it. Reasonably foreseeable that young people would be attracted to the boat. The boys were injured; council liable.

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TORT- duty of care

Bourhill v Young (1943)

Motorcycle accident. C sued motorcyclist’s estate. Held that she wasn’t owed a duty of care. She wasn’t present at the scene of the accident and only witnessed the immediate aftermath. There was no proximity.

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TORT- duty of care

Topp v London County Bus Ltd (1993)

Defendant Bus Company left a mini-bus in a lay-by overnight. It was unlocked and the keys left in the ignition. The driver who was expected to pick the bus did not turn up for his shift. Thieves stole the bus and drove it away. Unfortunately the bus knocked a woman off her bicycle and killed her. Her husband brought an action for damages.

Held: The bus company did not owe a duty of care for the acts of the third party. It was not foreseeable that thieves would take the bus and run a woman off her bicycle

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TORT- duty of care

Hill v chief constable of South Yorkshire:

Mother of the last victim sued the police. Wasn’t fair just and reasonable to sue the police as they didn’t know who the next victim would be. Therefore there was no proximity between the victim and the police.

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TORT- duty of care

Osman V Ferguson (1993)

The police were liable because they knew who the next victim would be and who the attacker was.

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TORT- duty of care

Section 1 Compensation Act 2006: Judges are under a duty to consider public policy considerations when establishing whether a duty of care was owed.

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TORT- Breach of duty

Blyth v Birmingham Waterworks: The omission to do something which a reasonable man would do or doing something a prudent man would not do

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TORT- Breach of duty

Glasgow Corp V Muir (1943)

Small children were scalded when a tea urn was dropped. The urn was being carried through a narrow passage where the children were buying ice creams

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TORT- Breach of duty

Bollom v Friern Hospital Management:

Claimant suffered depression and agreed to be electrocuted through ECT. He wasn’t given relaxant and broke pelvis. All in all decided no breach as the practice was still in its infancy.

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TORT- Breach of duty

Roe v Minister of health

Anaesthetic stored in glass capsules. Unaware they could crack and cause contamination so not liable.

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TORT- Breach of duty

Walker V Northumberland County Council:

C suffered stress which was increased through extra work, and had to leave work. Employer’s liable.

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TORT- Breach of duty

 

Hayley V London Electricity Board & Bolton v Stone

How big is the risk/ Magnitude of the risk: the degree of care expected depends on the likelihood of the risk: 

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TORT- Breach of duty

·         Social utility/Benefit of the risk:

Watts v Hertfordshire County Council:

Fire-fighter came to free woman. Necessary equipment was unavailable. Court held in this case there was no negligence because the situation was an emergency and those in charge had to balance the risk. In these circumstances the risk was justified.

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Tort- breach of duty

·         Practicality Precautions:

Latimer V AEC Ltd (1053)

Flooding of a factory. Signs in place and sawdust. Workman slipped and was injured. No breach of duty as necessary precautions taken and unreasonable to close the factory.

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TORT- Breach of duty

If a defendant is in sufficient control of avoiding the harm then there is an obligation to act:

Bradford-smart V west sussex county council (2002):

There was a duty to prevent bullying in schools; however the school took no steps against bullying.

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TORT- Breach of duty

·         Specific Classes of people/special characteristics:

Paris V Stepney Borough Council:                                                     

 Needed goggles as was blind in one eye

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TORT- Breach of duty

Mullins V Richards1998):                                                                                                                           

13yros playing with rulers. Shattered and she went blind. Other girl was not liable as they hadn’t realised the risk.

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TORT- Res Ipsa Loquitar

Scott v London & St Katherine's Docks (1865) 3 H & C

Facts:

The plaintiff was injured after being hit by six bags of sugar, which fell from the defendant's warehouse.

Issue:

Is the defendant liable, despite the plaintiff only being unable to infer negligence?

Held:

It is sufficient for the plaintiff to prove that the defendant was in control of the situation (which had caused the injury), the accident would not normally have occurred without carelessness and the cause of the accident is unknown. The facts spoke for themselves and therefore, it was up to the defendant to prove that he was not negligent.

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TORT- Res Ipsa Loquitar

Cassidy v Minister of Health (1950):

C had restricted movement in two fingers and was unable to use any of the four fingers on that hand properly after receiving medical treatment.

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TORT- Res Ipsa Loquitar

Saunders V Leeds Western health authority:

A child with a healthy heart suffered a cardiac arrest during a routine anaesthetic

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Ratcliffe v Plymouth and Torbay Health Authority

H: the principle of Res Ipsa Loquitar is likely to be of limited use where any alleged negligence is not clear cut:  C, after a successful operation on his ankle was given a spinal injection to relieve the pain which led to neurological problems. Neither side was able to prove what had actually happened. But D was able to show by expert evidence that C’s back was such that the injury would have occurred despite any negligence.

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Tort- Damage

Barnett v Chelsea and Kensington Hospital:

Three night watchmen get arsenic in their tea. They died. By the time they got to hospital it was too late therefore although the doctor had a duty of care which was breach, the night watchmen would have died anyway.

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Tort- Damage

McGhee v National Coal Board (1973)

C worked in a brick kiln and contracted dermatitis. One possible cause to which the C was exposed was brick dust. C argued a breach of duty because the employer didn’t provide washing facilities. The coal board was held liable because its failure to provide washing facilities materially increased the risk of the claimant contracting the disease. It was held to be the case even though it couldn’t be shown that the claimant wouldn’t have contracted the disease e if facilities had been in place.

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Tort- Damage

Barker v Willoughby (197):

C suffered a permanent disability in his leg as a result of D’s negligent driving. This meant he had to take work on a lower income. Sometime later he was shot in the same leg by an armed robber which meant his leg had to be amputated. The Hold rejected D’s claim that he was only liable for damages up to the point of amputation. The court identified the loss of earning was a permanent result of the original injury and unaffected by the amputation.

Multiple causes

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Tort- Damage

Jobbing V Associated Dairies Ltd (1982):

Mr Jobbing, a butcher, slipped on the floor at his place of work due to his employer's negligence. He injured his back which caused him to reduce his earning capacity to 50% of what it was. He then developed an independent back condition which was unrelated to the injury which left him unable to work. The trial judge applied Baker v Willoughby and held that the claimant was entitled to recover damages beyond the onset to the back condition. The employer appealed. Held: The House of Lords distinguished Baker v Willoughby and stated where the victim is overtaken before trial by a wholly unconnected and disabling illness, the decision had no application. The House of Lords were critical of the decision in Baker v Willoughby but stopped short of overruling it.

Multiple causes

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Tort- Damage

Wisher V Essex Are Health Authority (1988):

A premature baby was given too much oxygen by a junior doctor. The baby suffered from a condition affecting his retina which left him totally blind in one eye and partially sighted in the other. The condition could have been caused by the excess oxygen he had been exposed to or it could have been caused by four other factors unrelated to the oxygen, but related to the premature birth. The trial judge found the Health Authority liable. He applied McGhee v NCB but stated that McGhee had reversed the burden of proof where there was more than one possible cause. The Health Authority appealed. Held: Appeal allowed. The defendant was in breach of duty. A junior doctor owes the same standard of care as a qualified doctor. McGhee did not reverse the burden of proof which always remains on the claimant.

Multiple causes

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Tort- Damage

Fairchild v Glenhaven funeral Services Ltd (2002):

3 sets of employees had contracted a lung disease through prolonged exposure to asbestos dust with a number of different employers. It was impossible to say with accuracy which employer caused the disease but each employer has a duty to take reasonable care to prevent inhaling dust. The HoL imposed liability on all employers using material risk test.

Multiple causes

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Tort- Damage- causation

Knightley V Johns (1982):

D was driving negligently and crashed, and blocked a tunnel. The police officer in charge at the scene sent a police motorcyclist back against the flow of traffic to block off the tunnel at the other end, the police officer was injured when he collided with an oncoming car, while rounding a bend. D was not liable for injuries. The court held that it was the fault of the senior police officer as he broke the chain of causation.

Cause in Law

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Tort- Damage- causation

Mckew V Holland & Hannen & Cubitts (Scotland) Ltd (1969)

C suffered injury to his leg caused by D’s negligence. For some time after he suffered from a condition which meant his leg frequently gave way. While in this condition he tried to climb down a steep flight of stairs whilst carrying his daughter with no hand rail. He fell and suffered further injury. D was not liable for this as C was fully aware of the weakness of his leg and his behaviour was unreasonable.

Cause in Law

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Tort- Damage- causation

 The Wagon MOUND (1961).The damage must NOT be TOO REMOTE: The test is one of reasonable foreseeability. It is the TYPE rather than the extent of the damage which must be foreseen:

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Tort- Damage- causation

Hughes v Lord advocate (1963):

Boys injured after going down a hole with a lamp. D’s liable as although nature of the damage was remote damage of a general kind was foreseeable.

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Tort- Damage- causation

Smith V Leechbrain & Co Ltd (1962):

Burnt lip triggered latent cancer; employer was liable.

Thin Skull Rule

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Tort- Damage- causation

Robinson v Post Office (1974):

C Slipped on an oily ladder at work and cut his shin. He was given an anti-tetanus injection to which he was allergic and suffered brain damage. D’s argued that they were only liable for the cut to the shin but it was reasonably foreseeable that the C would have to have that injection if he was cut. Therefore they were liable.

Thin skull rule

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Tort- Medical Negligence

 Bolom v Friern Hosp. Management Committee: The standard of care expected of a member of the medical profession is the standard of care of a normal person practicing the profession. The duty is to exercise reasonable competence and skill: medical negligence

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Tort- Medical Negligence

 Bolitho V City and Hackney Health Authority The issue addressed was whether a medical practice can be justified on the relevant risks and benefits.

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Tort- Medical Negligence

 Ratcliffe v Plymouth (1998)

The claimant was unsuccessful because he was not able to prove any negligence

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Tort- Medical Negligence

Hotson v East Berkshire Health Authority (1987)

C fell and was taken to hospital. Injury to hip was not discovered for 5 days so there was permanent damage. 75% chance that the damage would have occurred even if the injury had been properly diagnosed. HoL refused claim for damages.

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Tort- Medical Negligence

Chester v Afshar (2004):

D operated on C’s spine having failed to warn her there was a 1-2% chance of paralysis. She was paralysed. She sued, because of failure to warn. The doctor had a duty to explain the risks of surgery to the patient.

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Tort- Pure Economic Loss

Weller & Co V Foot and Mouth Disease Research Institute (1966)

A virus escaped from the defendant’s premises and affected cattle rendering them unsalable. The claimant, an auctioneer, brought an action for loss of profit he would have made had the cattle not been so affected. There was no liability for the loss of profit as there was no contractual agreement between the auctioneers and the defendant.

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Tort- Pure Economic Loss

Spartan  Steel v Martin (1973):

D’s negligently cut through a power cable which supplied electricity to the C’s factory. As a result some “work in progress” had to be scrapped in order to prevent serious damage. C lost £400 profit and a further £1767 profit which he could have made on work he would have carried out during the period the power was off. The CoA held that the £400 profit was recoverable, but the £1767 was not. So was paid the £400 as the rest of the money was speculation.

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Tort- Negligent Mistatement

Hedley Byrne v. Heller:  The case was considered by the House of Lords, as leading case in stating liability for pure economic loss arising from a tort. It introduced the basic idea of an "assumption of responsibility". The issue was: Whether and under what conditions a person can recover damages for loss suffered by reason of his having relied on an innocent but negligent misrepresentation. Facts:Hedley [the claimants] were advertising agency who had made some advertising work for Easipower. Hedley was responsible for any amount which was not paid by Easipower since they have to pay for advertising orders. Later on Hedley became curious about a financial position of Easipower to afford another advertising which Hedley may give them on credit.The bank of Easipower [the defendant] gave a report of Easipowers financial position that they have enough resources for ordinary business proceedings, but stated that the report was given "without responsibility." Based on the report which was given by the respondents, Hedley added another orders on behalf of Easipower which later on were not covered by sufficient resources. It meant a loss of £17,000 for Hedley Byrne. Hedley sued the respondents for damages

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Tort- Negligent Mistatement

Chaudry v Prabhaker (1988):

The court of appeal held that the duty of care will arise on the defendant who is the friend of plaintiff that gives a negligent advice to the plaintiff to selection of a second car. The defendant will liable on it, although defendant not as a professional in the mechanic area.

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Tort- Negligent Mistatement

Yianni V Edwin Evans & SONS (1982):

A building society surveyor valued a property at £12000. It was later discovered that the property required £18000 worth of repairs. The surveyor was liable to the purchaser because although there was no contractual relationship between them, the purchaser had relied on the survey and this was not reasonable.

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Tort- Negligent Mistatement

West Bromwich Albion Football Club ltd V El.safty (2005):

A football club sent a player to a consultant about a knee injury. The consultant negligently advised surgery, which failed & the player had to retire. The club sued for economic loss arising from the player’s premature retirement. The court held the advice was taken by the player not the club. There was insufficient proximity between doctor and club.

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Tort- Negligent Mistatement

JEB Fasteners Ltd v Marks, Bloom & Co [1981]

In this case, a firm of accountant, who carelessly made a financial statement of Y Company and the plaintiff, relied on it. The court held that, the firm of accountant imposes the duty of care to plaintiff because the defendant fully aware that the plaintiff will investing in or taking over Y company thus, defendant will knew that the plaintiff will rely on the published accounts.

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Tort- Negligent Mistatement

Goodwill V British Pregnancy Advisory Service (1996):

D’s charity carried out a vasectomy on a client, but had warned him the procedure had reversed itself naturally 3years later, the client entered into a relationship with C who fell pregnant. She sued for economic losses caused by the cost of bringing up a child, but her claim failed. The D did not owe a duty to someone who was not their client, particularly when D could not know that its statements would be passed to C or how she would use them.

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Tort- Negligent Mistatement

Smith V Eric S Bush:

C was the purchaser of a house who had approached a lender for a mortgage. The lender asked the defendant a surveyor to prepare a report on the house and passed the results to C. C relied on the survey and subsequently suffered an economic loss when the house partially collapsed because of defects the survey failed to identify. Claim was successful.

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Tort- Psychological Damage:

Primary Victim

Page VSmith:
C was involved in a road traffic accident caused by D’s negligence. He escaped physical injury but the accident triggered a reoccurrence of M.E which he had previously suffered. It was held this damage can be claimed as injury as some sort was foreseeable.

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Tort- Psychological Damage:

Primary Victim:

Dulieu V White (1901):

A woman suffered nervous shock after a horse and van that had been driven negligently burst through the window of a pub where she worked. She was able to recover damages from nervous shock because she’d been put in fear of her own safety.

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Tort- Psychological Damage:

Primary Victim:

Walker v Northumberland County Council:

Social worker told his boss he wasn’t coping with his work load. This was not rectified when he came back. He had a breakdown

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Tort- Psychological Damage:

Donachie V Chief Constable of Greater Manchester:

C was a police officer. He was required to attach a tracking device to an underside of a car, belonging to a gang of suspected criminals who were drinking in a nearby pub. The tracking device was defective and C had to make 9 trips to the car before it would work. He suffered psychiatric harm as a result and was able to claim against his employer.

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Tort- Categories of PRimary Victim

Rescuers:

Chadwick v BRB (1967)

2 trains crashed in a tunnel, a man crawled into the wreckage to help injured passengers. He suffered from anxiety neurosis as a result. Able to claim for this because he’d been at risk himself.

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Tort- Categories of Primary Victim

Rescuers:

White V CCoSY (1998)

C’s were police officers who attended the scene at Hillsborough. They witnessed horrific scenes and tried to claim for psychiatric harm. Their claims failed because they were never in fear of their own safety.

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Tort- Categories of Primary Victim

Bystanders:

McFarlane V EE Caledonia (1994)

C was helping to receive injured people following a fire on an oil rig. He suffered psychiatric harm but was unable to claim.

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Tort -Secondary Victim

Mcloughin V O’Brien (1981):

C was a mum who was told her husband and 3 children had been involved in a serious road accident. She went to the hospital to be told one child had died and that her husband and 2 other children were seriously injured. She saw the surviving members in great distress and covered in blood and dirt. She suffered psychiatric damage as a result of what she had seen. As there was proximity and she was present at the immediate aftermath, she was allowed her claim.

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Tort -Secondary Victim

Alcock v CCoSY (1992):Resulted from the Hillsborough disaster. As the match was televised much of the disaster was shown on live television. A number of claims for nervous shock were made, which varied between those present and those who weren’t, and those who had close family ties to the victims and those who were merely friends. The HoL refused all the claims. They applied the 3 part test which is: 1) Proximity in terms of time and space to the incident. This meant claims can only be made where the incident had been directly witnessed or its immediate aftermath. NO claim could be made where the incident was reported.2) Proximity of the relationship with somebody who was a victim of the incident. This meant that there could only be a claim where there was a close tie of love and affection with the victim. This was presumed between husband and wife, parent and child, but all relationships had to be proved. 3 )The psychiatric harm must be a result of witnessing the event or its immediate aftermath. LEADING CASE

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Tort -Secondary Victim

Gali-Atkinson v Seghal (2003)

C was a mother who, having realised her daughter hadn’t come home, went out to look for her. She came across the scene of a road traffic accident where the emergency services had attended. C realised the victim was her daughter but did not see her until asked to identify her in the mortuary later. Her claim was successful as what she had seen had amounted to immediate aftermath.

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Tort -Secondary Victim

Sion v Hampstead Health Authority ( 1994)

C suffered psychiatric damage as a result of watching his son die over a period of days from road traffic accident injuries which had been allegedly negligently treated by the defendant hospital. The claim failed as there was no sudden shock, but rather a growing awareness.

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Tort -Secondary Victim

Walters V North Glamorgan NHS trust (2002):

C was a mother of an infant who had been negligently misdiagnosed by a hospital in wales. The baby suffered a fit and was transferred by ambulance to a hospital in London, where he died. Although it had been 36hrs since the initial fit to the death, this amounted to a single event which had led the claimant to psychiatric damage.

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Tort -Secondary Victim

Greatorex V Greatorex (2000):

D was badly injured in a road traffic accident caused by his own negligent driving. His father was one of the fire and rescue officers attending the scene and suffered psychiatric damage as a result of realising that the victim of the accident was his own son. D had no duty to look after himself

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Tort- Occupiers Liability

The 1957 Act: The Scope of the duty (what you have to do):

·         The standard of care is the same as that applied in negligence; therefore the occupier is only obliged to guard against the foreseeable.

·         The duty is only owed if the visitor is carrying out activities that are authorised within the terms of the visit.

·         The duty is to keep the visitor safe, not necessarily to maintain safe premises.

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Tort- Occupiers Liability

Wheat V Lacon & Co LTD (1966):

Manager of pub was given right to rent out rooms of private quarters. Paying guest fell on an open staircase. Whoever has control of the premises is liable; it can be more than one person

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Tort- Occupiers Liability

Harris v Birkenhead Corp (1976):

4yo was injured in an empty house which wasn’t boarded up. Council was liable. Even though the house was empty and not taken over, the council were still in control.

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Tort- Occupiers Liability

S1 (3) a person having occupation or control of any fixed or moveable structure, including any vessel, vehicle and aircraft… as in:

·         London Graving Dock v Horton (1951)

·         Hartwell v Grayson (1947)

·         Haseldine v Daw & Son Ltd (1941)

·         Wheeler v Copas (1981)

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Tort- Occupiers Liability

S2(1) – An occupier woes the same duty, the common duty of care, to all his visitors except insofar as he is free to do and does extend, restrict, modify or exclude his duty to any visitors by agreement or otherwise (warning notice).

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Tort- Occupiers Liability

S2(2)- the nature of the duty is to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe for the purpose for which he is invited to be there (only have to do what is reasonable to protect visitors).

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Tort- Occupiers Liability

Lowry v Walker (1911):

Some members of the public used a shortcut across D’s land for many years. D objected but took no legal steps to stop it. He let loose a wild horse in to the field which savaged the claimant. C was able to succeed in an action under occupier’s liability because he had implied licence.

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Tort- Occupiers Liability

S2 (3): the occupier must be prepared for children to be less careful than adults and as a result the premises must be reasonably safe for a child of that age.

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Tort- Occupiers Liability

Glasgow Corp v Taylor (1922):

Adults should be aware of and guard against allurements. 7yo ate poisonous berries in a park and died. The shrub on which the berries grew was not fenced off. The occupier should have expected that children might be attracted to the berries.

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Tort- Occupiers Liability

Jolly v Sutton (1998)

Obvious children would be attracted to the boat.

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Tort- Occupiers Liability

Phipps V Rochester Corp (1955)

5yo injured after falling down a trench which D had dug. D wasn’t liable as the child should have been supervised by the parents.

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Tort- Occupiers Liability

S2 (3b) when professional visitors are carrying out activities in relation to their trade they should appreciate and guard against any special risks ordinarily incident to it.

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Tort- Occupiers Liability

Roles v Nathan (1963):

2 Chimney sweeps died after they were overcome with carbon monoxide fumes when cleaning out part of D’s heating system. Claim failed as the chimney sweeps had been properly warned about the danger and the risk was on they should have been familiar with and known how to have dealt with it.

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Tort- Occupiers Liability-Liability for the Torts

Haseldine V Daw:

C was injured when, while visiting the D’s premises, the lift in which he was traveling fell to the ground. D was not liable because a reasonable person would ask a reputable contractor to maintain a lift and would not be in a position to check the work.

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Tort- Occupiers Liability-Liability for the Torts

S2(4): Generally you can avoid liability for loss or injuries suffered by his visitors if the cause of the damage is the negligence of an independent contractor hired by the occupier subject to the following:

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Tort- Occupiers Liability-Liability for the Torts

RAEVMARS (1990);

A warning on the inside of a door shed was ineffective.

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Tort- Occupiers Liability-Liability for the Torts

Staples v West Dorset Dc (1995):

Danger of wet algae in a high wall should have been obvious. Some risks should be obvious

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Tort- Occupiers Liability-Liability for the Torts

Beaton V Deavon CC (2002):

C was injured when riding his bike through a tunnel. The tunnel was well lit and in good condition. The gullies that ran though it was well known. The court held that the D’s were not liable because they had done everything practical to keep visitors safe. SOme risks should be obvious

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Tort- Occupiers Liability-Liability for the Torts

Ashdown V Samuel Williams & Sons (1957):

C could not recover damages for injuries sustained in a yard because notices excluding liability had been sufficiently bought to their attention. (exclusion clauses)

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Tort- Defences

Law Reform (Contributory Negligence) Act 1945: Damages may be reduced where C has contributed to his/her injuries.

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Tort- Defences

Sayer v Harlow DC:

A woman was locked in a public lavatory. To escape she stood on a revolving toilet roll holder and was injured. Her damages were reduced by 25%.

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Tort- Defences

Geary V JD Weatherspoon plc (2011):

The C, a customer in D’s bar attempted to slide down the banisters of the large open staircase, but fell on to the marble floor 4 metres below and was seriously injured. Claim failed because she was aware of the obvious risk and chose to take that risk. Therefore d didn’t have a duty to protect against the risk. Volenti

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Tort- Defences

Smith v Baker:The Claimant sued his employers for injuries sustained while in the course of working in their employment. He was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. Next to where he was working another set of workers were engaged in taking out stones and putting them into a steam crane which swung over the place where the Claimant was working. The Claimant was injured when a stone fell out of the crane and struck him on the head. The Defendant raised the defence of volenti non fit injuria in that the Claimant knew it was a dangerous practice and had complained that it was dangerous but nevertheless continued. At trial the jury found for the Claimant. The Defendant appealed and the Court of Appeal allowed the appeal holding that the Claimant was precluded from recovering as he had willingly accepted the risk. The Claimant appealed to the House of Lords.The appeal was allowed. The Claimant may have been aware of the danger of the job, but had not consented to the lack of care. He was therefore entitled to recover damages.

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Tort- Defences

Haynes V Harwood (1935):

D’s negligence had allowed a horse to run amok in a busy street. The defence of consent, made on the grounds of C had chosen to get involved, failed because  the consent was not freely given as the C had felt morally obliged to try and help people in danger.

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Tort- Liabiity towards trespassers

BRB v Herrington (1972):

A child trespasser was badly burned when straying on to a railway line. The occupiers knew that the fence was broken and that children had been trespassing. The HoL held that they were liable because they owed a “common duty of humanity”.

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Tort- Liability towards trespassers

The Scope of the Duty in the 1984 Act:

S1(1a)- a duty applies in respect of people other than visitors for injury on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them.

The act provides compensation for injuries only. The occupier will only owe a duty under S1(3) if he:

·         Is aware of the danger or has reasonable grounds to believe it exists

·         Knows or believes the other is in the vicinity of danger

·         The risk is one against which he may be expected to off some protection.

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Tort- Liability towards trespassers

Donoghue V Folkestone Properties (2003):

C was injured when he was trespassing on a slip way on a harbour and dived into the sea. It happened in the middle of the winter at midnight. It was held that the occupier didn’t owe a duty of care because a reasonable occupier would expect a trespasser would do such a stupid thing.

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Tort- Liability towards trespassers

Higgs v Foster (2004):

A police officer investigating a crime entered the occupier’s premises for surveillance and fell into an uncovered inspection pit. He suffered severe injuries but the occupier could not have anticipated his being there so there was no liability.

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Tort- Liability towards trespassers

Rhind v Asperry Waterpark:

C ignored a notice stating Private Property Strictly No Swimming. He jumped into the lake, and was injured by objects below the surface. The occupier had no reason to know the objects were there- no liability.

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Tort- Liability towards trespassers

Westwood v The post office (1973):

C fell through a trap door whilst trespassing. The common sense of the matter

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Tort- Liability towards trespassers

Ratcliffe:

There was a warning notice at the shallow end of a pool. It was always kept locked after hours and the C knew entrance was prohibited. He was trespassing and was injured when diving into the shallow end. The court held that he knew the risk and had accepted it.

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Tort- Nusiance

Malone V Laskey:

The wife of the householder was unable to sue in respect of personal injury when vibrations from machinery next door caused something to fall on her head. Failed as was not the owner or tenant.

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Tort- Nusiance

Southport Corp V Esso Petroleum (153)

D’s oil tanker beached in the estuary and leaded oil that subsequently drifted to local beaches. The court held that there was no reason why a defendant who is to the occupier of the neighbouring land, but misuses it so as to cause a nuisance is not liable.

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Tort- Nusiance

Tetley v Chitty (1986):

A landlord was liable in nuisance because he permitted go-karting on his premises.

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Tort- Nusiance

Anthony and others V The Coal Authority (2005):

D was responsible for previous organisations that had tipped waste from mining onto a tip on its land. This was later partly landscaped and passed into private hands. Later a fire was stated through spontaneous combustion of the coal, which lasted for three years. C sued for the interference caused by the fumes and smoke. D was liable because it was aware of the problem while the tip was still in its control but had failed to prevent the nuisance.

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Tort- Nusiance

Ø  Locality: the nuisance may be simply an acceptable activity carried out in the wrong area:

Sturges V Bridgeman (1879):

The vibrations from D’s machinery disturbed the claimant who had bought land next door and was using it as a doctors consulting room. The courts said; “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. It was no defence to D that he was there 1st and that the C came to the nuisance.

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Tort- Nusiance

Locality: the nuisance may be simply an acceptable activity carried out in the wrong area:

Laws v Florinplace (1981):

C succeeded in gaining an injunction when a shop in a residential area was converted into a sex shop (unacceptable in the area)

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Tort- Nusiance

Murdoch V Glacier Metal Co Ltd (1998):

C failed to prove that his use and enjoyment of the land was interfered with when he lived close to a busy bypass.

Locality

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Tort- Nusiance

St Helens Smelting Co v Tipping (1865):

Copper smelting even in an industrial area could be classed as a nuisance when it resulted in smuts from the process damaging the C shrubs.

Locality

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Tort- Nusiance

Dunton v Dover District Council (1977):

The opening hours of a local authority playground were reduced following complaints from a neighbouring old people’s home.

Locality

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Tort- Nusiance

Ø  Duration: To be actionable the nuisance should normally be continuous:

Bolton V Stone- Cricket Ball -didn't happen often enough

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Tort- Nusiance

Spicer v Smee (1946):

Fire that began as a result of a faulty wiring spread to a neighbour’s house. This was accepted as a nuisance because the faulty wiring was a continuous state of affairs.

Duration

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Tort- Nusiance

Duration

De Keyser’s Royal Hotel V Spicer (1914):

Building works included the use of heavy drilling machinery at night and kept disturbing the claimants sleep. Despite it being a temporary state of affairs the court granted an injunction to prevent the building work happening at night

 

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Tort- Nusiance

Crown River Cruises V Kimbolton Fireworks Ltd (1996):

D was liable in nuisance for burning debris that originated in a 20min firework display that damaged C’s river boats.

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Tort- Nusiance

Social Utility of D’s Conduct:

Demis V MOD (2003):

C lived in a large house in the country, but his peace was regularly disturbed by RAF training jets flying overhead. The court found that the noise did amount to nuisance and awarded damages, but it as not prepared to grant an injunction as the flights were a necessary part of the countries defence preparations.

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Tort- Nusiance

Sensitivity:

Robinson V Kilvert (1889)

No liability was found when the heat required in the manufacture of D’s boxes downstairs in a building damaged brown paper made by C upstairs because it wouldn’t damage any other paper.

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Tort- Nusiance

Malice:

Hollywood Silver Fox Farm V Emmet (1936):

C farmed silver foxes on D’s land. D objected to this and fired shotguns near the property, causing miscarriages to minx. It was deliberately to cause harm therefore seen as unreasonable.

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Tort- Nusiance

Malice:

Christie V Davey (1892):

D lived next door to a house which held music lessons and became annoyed. He nagged on the walls and beat trays and shouted. An injunction was granted against him.

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Tort- Nusiance

State of Mind:

Leakey V The national Trust (1980)

D’s were liable when a large mound on their land subsided and damaged the C’s cottages

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Tort- Nusiance

State of Mind:

Bradburn v Lindsey (1983):

The owner of a semidetached property was held to be liable to his neighbour for the spread of dry rot which he failed to prevent.

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Tort- Nusiance

Seriousness:

Halsey V Esso Petroleum (1961):

D’s oil company found liable. C successfully claimed for noise coming from D’s depot and for smuts causing damage to his washing.

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Tort- Nusiance

Cause of the Nuisance:

Southwark LBC V Mills and Others (1999):

Tenants in blocks of flats complained about normal daily noises coming from their neighbour. The reason the noises could be heard was the poor sound proofing of the flats. It was held that the noise was not unreasonable in this context and therefore not a nuisance.

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Tort- Nusiance

Cause of the Nuisance:

Bridlington Relay v Yorkshire electricity Board:

Held that overhead power cables which spoilt the television reception was not a nuisance.

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Tort- Nusiance

Cause of the Nuisance:

Hunter V Canary Wharf Ltd (1997):

Damages for loss of use and enjoyment will be equivalent to the loss in value to the affected premises.

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Tort- Nusiance

Remedies in an Action for Private Nuisance:

Injunction:

Miller v Jackson(1977)

C sought an injunction. Failed because cricket club was the focus of village life; it was in the interest of the community that playing cricket would continue despite damages to their property.

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Tort- Nusiance

Remedies in an Action for Private Nuisance:

Injunction

Kennaway v Thompson(1981):

D kept organising power boating events, acknowledging it was a nuisance to C, but argued that as it was in the interest of the public to carry on the events, that only damages should be awarded. The courts disagreed; the nuisance was too substantial; a partial injunction was granted to limit the number of races.

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Remedies in an Action for Private Nuisance:

Damages:

Hunter v Canary Wharf (1997),

Dennis v MOD (2003

The Wagon Mound (1966

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Tort- Nusiance

Defences to an Action of Private Nuisance:

Statutory Authority:

Allen v Gulf Oil (1981):

HoL decided the defence was arguable in the case of an oil refinery that had been built under the powers contained in an Act of Parliament, and that was causing a nuisance to its neighbours in the form of fumes and noise.

It is also a defence to show that Parliament has created an alternative remedy:

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Tort- Nusiance

Defences to an Action of Private Nuisance:

Statutory Authority

Marcic v Thames Water (2003):

C sued as a result of the flooding of his land caused by inadequacies in D’s drainage systems. The HoL ruled that there could be no action in nuisance as Parliament had established a statutory framework of remedies for people who had been affected by D’s activities.

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Tort- Nusiance

Defences to an Action of Private Nuisance:

Prescription:

Sturges v Bridgman

The vibrations from D’s machinery disturbed the claimant who had bought land next door and was using it as a doctors consulting room. The courts said; “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. It was no defence to D that he was there 1st and that the C came to the nuisance

 

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Tort- Vicarious Liability

Cassidy v Minister of Health

Even though the hospital didn’t tell the surgeon how to do his job, he was an integral part of the organisation and the hospital was liable for his negligence.

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Tort- Vicarious Liability

Ready Mix Concrete (1968)

Gov. introduced a new tax so the company dismissed all their drivers and then took them on as independent contractors. Under the new contracts, the drivers bought new Lorries on credit and were responsible for the insurance and maintenance. They were paid per delivery and the Lorries had to be in company colours and the drivers had to wear uniform. It was held they were independent contractors rather than employees because they owned the Lorries and carried the risk of loss.

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Tort- Vicarious Liability

Course of Employment

 

Centaury Insurance (1942)

 

An employee was a petrol tank driver, who was delivering petrol to a garage. He lit a cigarette and caused an explosion. Although the driver was not authorised was not authorised to smoke, the smoking occurred whilst he was delivering petrol which was authorised. Therefore he was doing an authorised act in an unauthorised way, the employer was liable.

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Tort- Vicarious Liability

Course of Employment

Lister v Hesley Hall Ltd (2001)

The employee, a warden of a children’s home, subjected a number of boys in his care to systematic sexual abuse. Using traditional principles, the employer would not be vicariously liable as the abuse was clearly not an authorised act. However the HoL introduced a new test: were the acts of the employee so closely connected with his employment that it is fair and just to hold the employer liable? Applying that test, the employer was vicariously liable as the warden’s job as a career was inseparable from his acts as an abuser.

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Tort- Vicarious Liability

Course of Employment

Limpus V London General Omnibus Co. (182):

The D’s told their drivers not to race their buses. One of the drivers disobeyed and caused an accident. The employers were liable because the employee was doing an authorised act in an unauthorised way.

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Tort- Vicarious Liability

Course of Employment

Beared V London General Omnibus Co. (1900)

A bus conductor was turning a bus round and negligently injured the claimant. The court held that it was not within the scope of a conductor’s job to drive the buses and so the employers were not liable.

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Tort- Vicarious Liability

Course of Employment

Rose v Plenty (1976)

Employers told not to give rides on their milk floats. One milkman paid a 13yo boy to help him with his round. The boy was injured and the employers were liable

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Tort- Vicarious Liability

Course of Employment

Hilton V Thomas Burton Ltd (1961)

3 employees borrowed a works van and went off on an unauthorised break one of the men was killed because of negligent driving. The widow of the man that was killed was unable to hold the employer vicariously liable because the men were on a frolic of their own.

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Tort- Product Liability

Fisher v Harrods Ltd (1966):

C was injured by fluid which flew out of a jewellery cleaning fluid bottle when she tried to open it. The fluid had been given to her by a friend. The retailer who sold it was liable because they were aware there had been problems with the bottles and they should have investigated it further which is what a reasonable retailer would have done.

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Tort- Product Liability

1.       Was there a faulty manufacturing process:

Grant V Australian Knitting Mills (1935)

C bought woollen underwear which caused dermatitis because of chemical in the fabric. The manufacturer was liable because the garment contained a defect which couldn’t reasonably be discovered by the purchaser.

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Tort- Product Liability

1.       Was there a faulty manufacturing process:

CARROLL V Fearon (1998)

C’s were injured in a car accident which was caused by a tyre manufactured by D. The claimants couldn’t say exactly how the tyre was defective by the courts held the very fact that it was defective was enough to demonstrate that there had been negligence.

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Tort- Product Liability

Intermediate examination

Griffiths V Arch Engineering (1968)

D hired out a grinding machine that had been fitted with a wheel which was too large for the speed at which the machine had been set. The person who had hired the machine loaned it to someone else who was then injured by it. D was liable for failure to protect any person who might handle the machine.

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Tort- Product Liability

Instructions and warning labels:

Kubach V Hollands (1937):

A chemical manufacturer sold chemicals to a shop with a warning that they should be tested before use. The shop then sold them to a school without warning and a pupil was injured. Shop was liable but not the manufacturer.          

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Tort- Product Liability

Causation:

Evans V triplex Safety Glass (1936)

A car windscreen shattered a year after the purchase and C was injured. There was no obvious cause for the windscreen to shatter. C was unable to show on a balance of probabilities that D had been negligent.

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Tort- Product Liability

The Consumer Protection Act 1987:

Abouzaid V Mothercare (2000)

C was a child who suffered serious eye injury when he was hit in the face by a buckle which was part of a pram. D’s argued that they shouldn’t be liable because at the time the product was supplied nobody was aware of the risk posed by the buckle. D wasn’t liable in negligence because it had done all that was reasonable at the time, but was liable under CPA because of strict liability.

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Tort- Product Liability CPA

S2 (1) CPA- a claimant may sue if he suffers damage which is caused wholly or partly by a defect in the product.

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Tort- Product Liability CPA

S 1 (2) - A product is any goods and includes any product within a product. Product includes substance, crops, ships etc.

A V National Blood Authority (2001):

Human blood to be used in transfusions is a product covered by the act.

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Tort- Product Liability CPA

Defects:

S3- there is a defect in a product if the safety of a product in not such as persons generally are entitled to expect in circumstances.

Richardson V LRC Products Ltd (2000):

A condom failed and C became pregnant as a result. She failed in her action to cover the costs of bringing up a child because the condom was held not to be defective. Held that its safety was of a standard that people are entitled to expects as its widely known that such a product doesn’t offer a complete guarantee. This is in contrast with the National blood Authority case where it was decided that people generally expect blood transfusions to be entirely safe.

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Tort- Product Liability CPA

Worseley V Tambrands

A manufacturer of tampons was not liable for the toxic shock syndrome suffered by the user because the packaging carried instructions and warnings.

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Tort- Product Liability CPA

Bogle V McDonalds Restaurant (2002)

C’s were scolded by very hot drinks which were packaged in strong paper cups with lids on. They were knocked over; lids came off allowing the liquid to cause injuries. The court held the product was not defective because precautions had been taken and the lids were of adequate strength. People knew there was a risk and extra care should be taken, particularly around children.

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Tort- Defences under the Consumer Protection Act 1

Development risks defence:

Abouzaid V Mothercare (2000):

Development risks defence is not available in respect of defects that are discoverable but no one had thought to investigate.

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Tort- Defences under the Consumer Protection Act 1

Development risks defence:

A V National Blood Authority (2001):

Development risks defence is only available in respect of risks which are unknown and not those which are known but which cannot be identified in any particular item.

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Tort- General Negligence Defences

Consent (volenti non fit injura):

Kirkham V CCO Greater Manchester (1990):

The police were sued on behalf of a man who had committed suicide in police custody. The police knew of the risk of suicide and failed to protect him from taking his own life. They tried the defence of consent but it was held this could not apply where the C was not of sound mind.

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Tort- General Negligence Defences

Consent (volenti non fit injura):

Simms v Leigh RFC (1969):

C broke his leg when he was tackled. Court held that has the injury occurred during the course of the tackle which was within the rules of the game the defence of consent applied and D’s weren’t liable.

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Tort- General Negligence Defences

Consent (volenti non fit injura):

Smolden V Whitworth (1996):

C was a player in an under 19’s rugby match; the rules included a provision that there should be no collapsed scrums because they can cause injury. Referee failed to prevent such a scrum and C was seriously injured as a result. Defence of consent failed, D was in breach of duty.

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Tort- General Negligence Defences

Consent (volenti non fit injura):

Haynes V Harwood (1935):

D’s negligence had allowed a horse to run amok in a busy street. The defence of consent, made on the grounds of C, a police officer, had chosen to get involved, failed because the consent was not freely given as the C had felt morally obliged to try and help people in danger and was acting under a duty to protect the public.

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Tort- General Negligence Defences

Consent (volenti non fit injura):

Cutler V United Dairies (London) ltd (1933):

Cab drivers horses bolted and ran into a field. C was injured when he tried to recapture them. The horses were creating no risk to people or property. C couldn’t be said to be acting in an emergency

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Tort- General Negligence Defences

Contributory Negligence:

Baker v Willoughby (1969):

C was run over. He had a clear view of the road he was crossing and he took no evasive action. He was 50% to blame and damages were reduced by that amount.

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Tort- General Negligence Defences

Contributory Negligence:

Sayer v Harlow (1958):

A woman was locked in a public lavatory. To escape she stood on a revolving toilet roll holder and was injured. Her damages were reduced by 25%.

O’connell V Jackson: Not wearing a crash helmet.

Froom v Butcher: not wearing a seatbelt

Stinton v Stinton (1993):

Damages were reduced by 1/3 for accepting a lift from a drunk driver.

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Tort- General Negligence Defences

Contributory Negligence:

Jones V Boyce (1816):

C was riding on top of D’s coach when one of the horses reins broke and it looked as the coach would topple over. C jumped from the coach and broke his leg. In fact it didn’t topple over so if C had remained where he was he wouldn’t have been injured. However the court held he had acted reasonably in the face of what appeared to be a dangerous situation.

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Tort- General Negligence Defences

Contributory Negligence:

Gough v Thorne (1966)

13yo was killed crossing a road. A lorry had signalled that it was safe to cross. She did so without looking and was hit and killed by a second lorry following the first. Because of her age she hadn’t fallen below the expected standard of care.

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Tort- General Negligence Defences

Contributory Negligence:

Evans V Souls Garage (2000)

The C was a 13yo boy who had bought petrol from D intending to inhale it. Spilled petrol caught light and burnt him badly. He successfully sued D for negligence in selling petrol to children but damages were reduced by 1/3 for his contributory negligence in playing with petrol which he knew was dangerous.

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