Tort 4: Special Liability Regimes

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Tort 4: Special Liability Regimes
2013-04-16 03:20:30

Tort 4
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  1. Wilsons & Clyde Coal v English
    Employers' liability; common law duties

    Lord Wright saw employers' common law duty as comprising three separate duties:

    • - competent staff
    • - adequate material (plant, equipment, machinery)
    • - proper system of work

    + duty to take reasonable steps to provide a safe place of work (Latimer v AEC)

    Lord Wright described these duties as being 'personal to the employer'. This means an employer cannot escape liability for the negligent performance of its duty by saying that it delegated its performance to someone else (eg an independent contractor or one of its employees). It is a non-delegable duty.
  2. Hudson v Ridge Manufacturing Co
    Employers' liability; duty to provide competent staff

    An employer will only owe a duty if he actually knows of the risk. In this case, the employer knew the risk his employee (a prankster) was posing to other employees but did not take appropriate action.

    However, if it was the first known incident involving that employee, then the duty of care would not have arisen.

    A duty to provide competent staff will not therefore arise merely from the fact that a worker is incompetent.
  3. Waters v Commissioner of Police
    Employers' liability; duty to provide competent staff

    HofL confirmed that the risk being posed by the worker could be psychological as well as physical harm.
  4. Employers' Liability (Defective Equipment) Act 1969 s1
    Employers' liability: duty to provide adequate plant & equipment

    s1- An employee can sue the employer for breach of its duty to provide adequate plant and equipment, even if a 3rd party is at fault.

    'the injury shall be deemed to be also attributable to negligence on the part of the employer' s1(1)

    Therefore, all that needs to be established is fault on the part of someone and causation.
  5. General Cleaning Contractors v Christmas
    Employers' liability; duty to provide a safe workplace

    Common law duty to provide a safe system of work applies regardless of where the employees are at work. The means an employer has to assess premises which his employees are sent for dangers and then, if such dangers are found, devise and implement a system of work so as to eradicate or minimise those dangers.
  6. Walker v Northumberland County Council
    Employers' liability; duty to provide a safe system of work; stress at work

    Duty to provide a safe system of work can extend to an employe who has suffered stress as a result of his work.
  7. Hatton v Sutherland; Barber v Somerset County Council
    Employers' liability; duty to provide a safe system of work; stress at work

    The 'threshold' question to determine whether a duty would arise was whether injury to health by stress at work was reasonably foreseeable. In order to answer this question, the court should consider:

    • 1) The nature and extent of the work done by the employee
    • - eg was the workload obviously too demanding in terms of type or amount? Was there a high degree of absenteeism or sickness in the relevant department?

    • 2) Signs from the employee themselves
    • - Did they complain about workload?

    The court also made it clear that an employer was generally entitled to assume an employee was up to the normal pressures of the job and was entitled to take what an employee told it at face value. (eg- in Sutherland, the teacher said she was stressed because of problems at home, not work)
  8. Melville v Home Office
    Employers' liability; duty to provide a safe system of work; stress at work

    C worked as a health care officer at a prison. Over a 17-year period he had to retrieve bodies of prisoners who had committed suicide on eight occasions. After the last incident he developed a stress-related illness.

    Even though his stress resulted from witnessing traumatic episodes rather than from day-to-day work, the CofA found that psychiatric injury was foreseeable and this gave rise to a DofC under the Hatton approach.
  9. Caswell v Powell Duffryn Associated Collieries
    Employers' liability; contributory negligence

    Lord Atkin made it clear the courts are prepared to make allowances for employees working in noisy conditions, doing repetitive work.

    'a different degree of care may well be expected from a workman in a factory or mine from that which might be taken by an ordinary man not exposed continually to the noise, strain and manifold risks of factory or mine.'
  10. Ready Mixed Concrete (South East) v Minister of Pensions and National Insurance
    Vicarious liability; the worker must be an employee

    A contract of service would exist (ie an employment contract) if the following three conditions were satisfied:

    1) Employees agree that, in consideration of a wage or other remuneration, they will provide their own work and skill in the performance of some service for their employer (wage for work); and

    2) Employees agree, expressly or impliedly, that in the performance of that service they will be subject to another person's control in a sufficient degree to make that person the employer (ie level of control implies employment); and

    3) The other provisions of the contract are consistent with its being a contract of service. Provisions which would be inconsistent with a contract of service would include a requirement that workers should provide their own tools and hire their own helpers, or an arrangement whereby its employee who takes the financial risk of the enterprise rather than the employer (ie worker is not so independent as to imply no contract of service)
  11. Lister v Hesley Hall
    Vicarious liability; Employee's tort must have been committed in the course of his employment; intentional torts

    Lord Millet confirmed Sir John Salmond's interpretation of whether or not a tort was committed during course of employment. An employer will be vicariously liable for:

    'wrongful acts' which it has authorised; or

    'wrongful and unauthorised' modes of carrying out an authorised act

    Also, Lord Millett made it clear that although the Salmond definition was useful it was not a 'statutory definition'.

    He applied the 'sufficency of connection', approving the judgment in Lloyd v Grace, Smith & Co.

    An employer can be vicariously liable for an intentional wrongful act committed purely for an employee's benefit where there is a sufficient connection between the work he had been employed to do and the acts in question.

    In this case, a warden had been employed to care for children and there was therefore a sufficient connection between his job and the acts of abuse in question. The sexual assaults had been committed at the employer's premises while the employee was caring for the children in performing his duties.
  12. Poland v Parr
    Vicarious liability; Employee's tort must have been committed in the course of his employment

    An off-duty employee pushed away a man he saw trying to steal from his employer's market stall. The court felt that as the man was protecting his employer's property, he had implied permission to push away the thief. The employer therefore authorised the tort (battery) committed.
  13. Warren v Henleys
    Vicarious liability; Employee's tort must have been committed in the course of his employment

    An employee who was insulted by a customer and punched him in the face in retaliation was not acting in the course of employment. The retaliation was a personal act not authorised or connected with his employment.
  14. Century Insurance v NI Road Transport Board
    Vicarious liability; Employee's tort must have been committed in the course of his employment

    An oil tanker driver caused a fire at a garage when he threw away a lit cigarette while unloading his tank. His employer was liable as he was doing an authorised act (unloading oil) in an unauthorised way (whilst smoking).
  15. Harrison v Michelin
    Vicarious liability; Employee's tort must have been committed in the course of his employment

    An employee lost control of a wheelbarrow, which collided with an employee. He was performing his job (pushing the wheelbarrow) but in a careless way, so fell within the course of employment.
  16. Rose v Plenty
    Vicarious liability; Employee's tort must have been committed in the course of his employment; acts prohibited by the employer

    In some cases an employer may expressly prohibit a certain act. However, that may not be sufficient to help the employer escape liability for the employee's torts.

    Lord Denning said that in order to determine whether a prohibited act is within a course of employment 'it very much depends on the purpose for which it is done. If it is done for his employer's business, it is usually done in the course of his employment, even though it is a prohibited act.'

    In this case, since the milkman was performing an authorised task (delivering milk) in an unauthorised way (getting help) and in doing so furthered the employer's business, the employer was still vicariously liable.

    If the milkman had just given the boy a life, this probably would not have been in the course of business since it was prohibited.
  17. Twin v Bean's Express
    Vicarious liability; Employee's tort must have been committed in the course of his employment; acts prohibited by the employer

    It was found that a lorry driver was not acting 'within the scope' of his employment by giving a lift to a hitchhiker. In this case, the driver's actions did not further his employer's business, unlike in Rose v Plenty.
  18. Lloyd v Grace, Smith & Co
    Vicarious liability; Employee's tort must have been committed in the course of his employment; intentional torts

    It was found that an intentional tort (fraud) stemmed from an act which his employer had authorised so it fell within his course of employment.

    Therefore, although the act was not authorised (illegally transferring a property), he was authorised by the employer to carry out that transaction, which meant the employer was liable for the tort.
  19. Mattis v Pollock
    Vicarious liability; Employee's tort must have been committed in the course of his employment; intentional torts

    An unlicensed doorman stabbed a nightclub customer outside the club. It was found that the stabbing was so closely connected with what the employee had authorised him to do in the performance of his employment that it was fair and just to impose liability on the employer. This was even though the bouncer had gone home, got a knife and come back to attack the victim.
  20. Maga v Birmingham Archdiocese of Roman Catholic Church
    Vicarious liability; Employee's tort must have been committed in the course of his employment; intentional torts

    The church was responsible for the sexual molestation of a 12-year-old boy despite the fact that the priest had never had any contact with the boy in his role as a priest. Lord Neuberger was influenced by the fact that the priest was always dressed in church robe and was never really 'off-duty'. He was acting in his general duty to 'evangelise.'
  21. Joel v Morison
    Vicarious liability; Employee's tort must have been committed in the course of his employment; 'frolic' cases

    Parke B said that if an employee is acting outside his course of employment when commits a tort, he may be a 'frolic of his own'.
  22. Hilton v Thomas Burton
    Vicarious liability; Employee's tort must have been committed in the course of his employment; 'frolic' cases

    Diplock J said that 'if an employee is not doing what he is employed to do, the employer does not become liable for the empoylee's acts merely because it is done with his knowledge, acquiescence or permission'

    In this case an employee used a van provided by his employer to leave a demolition site for a lunch break with the express permission of his employer. The fact that they had the boss' permission to use the van did not by implication make the task authorised since he was not doing what he was 'employed to do.' It was a frolic.
  23. Harvey v R G O'Dell
    Vicarious liability; Employee's tort must have been committed in the course of his employment; 'frolic' cases

    Driving three months of a sales rep's route to stop for lunch was held to be reasonably incidental to one's work.

    Therefore, it is a question of degree. If he had driven twenty miles off his route, the outcome might have been different.
  24. Lister v Romford Ice
    Vicarious liability; indemnity

    Where an employer (or usually employer's insurers) has paid out compensation to someone, having been found vicariously liable, the case of Lister v Romford Ice is authority for the fact that the employer has a right at common law to claim an indemnity (ie full loss) from the employee who actually committed the tort.
  25. Lonrho v Shell (No.2)
    Breach of statutory duty; actionable in tort?

    If the relevant statute protects a limited ascertainable class (eg employees) rather than the public generally it is more likely that a claim in tort will lie for breach of its provisions.

    This case also stated that where the sanction provided by statute is a criminal penalty (eg a fine) then there is a presumption that this is intended as the sole means of enforcement.
  26. Groves v Lord Wimborne
    Breach of statutory duty; actionable in tort?

    Lonrho established that criminal penalties for breach of statutory duty gives rise to a presumption that the statute was meant as the sole means of enforcement (ie it was not intended to be actionable in tort).

    However, this case shows that the presumption is rebuttable where the duty is imposed on a limited class and the sanction is not an effective remedy.

    In this case, the reasons given were:

    - the financial level of the penalty (100) when compared with C's loss. Parliament clearly could not have intended this to be adequate and exclusive compensation for serious injury or death.

    - The Secretary of State had a discretion whether to apply all or part of the fine for the benefit of the injured person. There was, therefore, no certainty that the injured person would receive any of it.

    - The amount of the fine was to be assessed by reference to the nature of the offence rather than by the severity of the injury.
  27. Chipchase v British Titan
    Breach of statutory duty; scope of D's duty

    This is determined by the wording of the statute. The courts will construe the wording of a statutory provision strictly with the result that unless the facts fall exactly with the statutory wording, no duty will arise.

    This may be the case even if D was clearly negligent but his conduct still fell outside of the wording in the statute.
  28. Hartley v Mayoh
    Breach of statutory duty; scope of duty

    Whether or not C is a member of the protected class must also be construed strictly in relation to the wording of the statute.

    In this case, duty was owed to 'persons employed in the factory'. The fireman was a visitor so was outside of the protected class.
  29. Stark v Post Office
    Breach of statutory duty; breach

    The wording 'every employer shall ensure that work equipment is maintained in an efficient state' imposed strict liability.

    C was a postman who was injured when his delivery bicycle suddenly broke. The defect of the bicycle could not have been discovered, even through a thorough inspection.

    However, as the stature imposed a strict liability duty on the employer, the P.O was liable to C for his injuries.
  30. Baker v Quantum Clothing Group
    Breach of statutory duty; breach

    Whether or not a duty is an absolute one is a decision for the court. 'Safety' was not an absolute obligation but had to be measured according to the general knowledge and standards of the time.
  31. Nimmo v Alexander Cowan
    Breach of statutory duty; breach

    Where a duty is a qualified one, it will often require something to be done 'so far as reasonably practicable.' In this case, the onus on proving that it was not reasonable practicable to comply with the requirement lies with D (consider magnitude of risk etc)

    This is different to negligence, where the burden is on C to establish that D was in breach.
  32. Gorris v Scott
    Breach of statutory duty; kind of injury stature was intended to prevent (remoteness)

    The test is 'was the type of harm suffered by C the kind of loss the stature was intended to prevent?'

    In this case, the statute required pens in ships carrying animals to prevent the spread of infection, not to prevent the animals from being washed overboard.
  33. McWilliams v Arrol
    Breach of statutory duty; causation

    'but for' test applies here.

    In this case an employer owed a duty to provide employees with a safety harness and the employee was subsequently injured because he was not using a harness. However, the claim failed because it became clear that C would not have used a harness even if one had been provided.
  34. Wheeler v New Merton Mills
    Breach of statutory duty; defences- volenti

    Volenti defence is unlikely to succeed in claims of breach of statutory duty as to allow the defence would effectively defeat the purpose of having statutory regulations in the first place.
  35. ICI v Shatwell
    Breach of statutory duty; defences- volenti

    If a statute places a duty on employees as well as employers, and a C brings a claim against an employer as vicariously liable for the tort of a colleague, then it that case volenti may succeed.

    C (an injured employee) knew about a risk associated with a work practice that his employer had forbidden him and a colleague to follow. This practice also breached a statutory duty imposed on 'employees' within this particular field. With this knowledge and in deliberate defiance of the employer's order, C and his colleague continued with the work practice in question. C was injured and sued his employer as vicariously liable for his colleague's breach of statutory duty. C found that C had consented to the injury.
  36. Occupiers' Liability Act 1957 ss1-2
    Occupier's Liability; duty of care

    Occupiers owe a duty to take such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which he is permitted to be there.

    (nb this is a duty to the visitors' safety, not the premises itself)
  37. Wheat v E Lacon & Co
    Occupier's Liability; duty of care; who is the 'occupier'?

    Interpreted widely.

    Lord Denning said the most important characteristic of an occupier is the element of control he has over the premises. Therefore, the owner may be someone who has 'a sufficient degree of control over premises'

    Given that the test is one of control, someone who is not an owner of the premises can still have sufficient control over them to be an 'occupier'. In this case, the the managers of a pub who were lodging there were found to be 'occupiers' for the sake of the 1957 Act.

    Therefore, there may be more than one 'occupier.'

    Additionally, in some circumstnaces, an independent contractor, whilst working on another person's premises (eg a large building development), could constitute an occupier (along with the owner of the premises), having the required degree of control over the area where it is working.
  38. Occupiers' Liability Act 1957 ss1-5
    Occupier's Liability; duty of care; who is a 'visitor'?

    s1(2) a person with express permission to be there granted by the owner.

    s1(4) A person entering any premises under the National Parks and Access to the Countryside Act 1949 is not a visitor.

    s2(6) A person 'in exercise of a right conferred by law', whether or not they have express or implied permission to be there

    s5(1) A person with implied permission to be on the premises under contract
  39. Occupiers' Liability Act 1957 s1(3)(a)
    Occupier's Liability; duty of care; 'state of the premises'

    The definition of premises under the 1957 Act is very wide. It includes open land as well as fixed or moveable structures. I specifically includes vessels, vehicles or aircraft.
  40. Tomlinson v Congleton Borough Council
    Occupier's Liability; duty of care; 'state of the premises'

    The 1957 and 1984 Acts are concerned with liability due to the 'state of the premises', not the actions of the C. If injuries are caused by C's actions, no duty of care will arise.

    In this case it was found that a shallow lake was a natural and obvious feature of the premises. The only risk was C diving in, no DofC was owed in respect of this.
  41. Revill v Newbery
    Occupier's Liability; duty of care; 'state of the premises' + defences for 1984 Act- illegality

    No DofC is owed in respect of D's actions under OLA 1957. In this case, injuries were caused by D shooting the occupier.

    Also, in this case it was confirmed that an occupier will not be able to escape liability because the non-visitor (usually trespasser) was committing a criminal offence. The purpose of the 1984 Act was to provide a safety net protection to trespassers and if this defence was allowed to succeed, it would thwart Parliament's intentions
  42. Occupiers' Liability Act 1957 s2(2)
    Occupier's Liability; standard of care

    The standard of care is to take 'such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which he is permitted to be there.'
  43. Occupier's Liability Act 1957 s2(3)
    Occupier's Liability; standard of care

    s2(3)(a) singles out child visitors as requiring a higher degree of care from the occupier than other visitors. They cannot be expected to appreciate dangers which would be obvious to an adult.

    s2(3)(b) Occupier can expect that skilled visitors (eg contractors) will 'appreciate and guard against any special risks' which are part of the visitor's job.
  44. Roles v Nathan
    Occupier's Liability; standard of care; s2(3)(b) OLA 1957

    Lord Denning decided that the occupier had not fallen below the standard of care owed to chimney sweeps who died while doing his job as a 'visitor' in D's premises.

    The reasons given were:

    - the danger which caused their deaths was one which was incidental to the job and which they should, therefore, have appreciated and guarded against.

    - they had been adequately warned of the danger by D's agent.

    However, Lord Denning said that if they had been killed by something that was not 'incidental to their job' (he gave the example of a defective gable), he would have found against the occupier.
  45. Glasgown Corporation v Taylor
    Occupier's Liability; standard of care; s2(3)(a) OLA 1957

    Poisonous berries represented a concealed danger to a 7-year-old.

    Lord Atkinson observed 'something in the nature of a trap. The berries looked alluring and as harmless as grapes or cherries.. a concealed or disguised danger.'

    Therefore, the occupier should have adequately warned against the danger or fenced off the shrub.

    If C had been an adult, the standard of care would have been lower as an adult could be expected to be aware of the danger of unidentified shrubs.

    Nb- this probably applies to the 1984 Act too.
  46. Phipps v Rochester
    Occupier's Liability; standard of care; s2(3)(a) OLA 1957

    It was held that a prudent parent would not have allowed two small children to go alone to the building site. D was entitled to assume that parents would not behave in this way and, therefore, the corporation escaped liability as it had reached the standard to be expected of a reasonable occupier in all the circumstances.

    The premises would have been reasonably safe for a very young child accompanied by an adult.

    Nb- this probably applies to the 1984 Act too
  47. Bourne Leisure v Marsden
    Occupier's Liability; standard of care; s2(3)(a) OLA 1957

    A 2-and-a-half-year-old boy drowned in a pond situated within the boundaries of a holiday park where he was staying with his parents. The pond was surrounded by a 2-foot fence over which the boy had climbed. His parents argued that, given the attraction of such a pond to young children, the owners of the park should have done more to warn the parents of the danger of the pond.

    The CofA held in favour of the holiday park and decided that as the pond was an obvious feature of the park and the danger it presented to small, unaccompanied children was equally obvious, the park had not breached the common duty of care imposed by the 1957 Act.
  48. Occupier's Liability Act 1957 s2(4)
    Occupier's Liability; standard of care

    D may escape liability if adequate warning is given. However, it is crucial that warning is 'enough to enable the visitor to be reasonably safe'

    (consider how specific the warning was, how obvious the danger was and how visible the warning was. Legible for foreigners?)

    s2(4)(b) provides that if an occupier has hired a contractor and satisfied three provisos he will have discharged his common duty of care in respect of any injuries caused by faulty workmanship on the contractor's part. In such cases, the visitor may sue the contractor instead:

    s2(4)(b) only applies to 'work of construction, maintenance or repair':

    - the occupier must have acted reasonably in employing an independent contractor. The more technical the work, the more reasonable it will be to contract out such work.

    - the occupier must take steps to ensure the contractor he chooses is competent (eg checking references etc)

    - the occupier must have taken reasonable care to check the contractor's work was done properly. This depends on the nature of the contracted work.
  49. Haseldine v Daw
    Occupier's Liability; standard of care; s2(4)(b) OLA 1957; defective product liability 'manufacturers'

    Contrast with Woodward v Mayor of Hastings. It was found that the occupier was not liable when a lift malfunctioned. He had contracted the maintenance of the life to a reputable hydraulics engineering company. This was a highly technical job and the occupier could not reasonably be expected to check the lift himself.

    Also, repairers of products may be 'manufacturers' for the sake of common law defective product negligence.
  50. Woodward v Mayor of Hastings
    Occupier's Liability; standard of care; s2(4)(b) OLA 1957

    Contrast with Haseldine v Daw. In this case a child slipped on a step that had been negligently left in an icy condition by a cleaner. No specialist knowledge is required to recognise that an icy step is dangerous. The occupier could have done this himself so he cannot say he discharged his duty of care.
  51. Jolley v Sutton
    Occupier's Liability; remoteness

    The remoteness test for Occupiers' Liability is the same as that for negligence (ie the Wagon Mound test)
  52. Occupier's Liability Act 1957 s2(5)
    Occupier's Liability; defences; volenti

    Normal volenti rules will apply in deciding whether C has consented to the risk. C must therefore know the precise risk that causes the injury and show by his conduct that he willingly accepts the legal risk.
  53. Occupier's Liability Act 1957 s2(1)
    Occupier's Liability; defences; volenti

    Permits the occupier to exclude liability by notice.
  54. White v Blackmore
    Occupier's Liability; defences; volenti; s2(1) OLA 1957

    Even if an occupier has failed to discharge their DofC with warnings, a clearly worded notice that covers the liability in question will be valid if reasonable steps have been taken to bring it to the visitors' attention.

    In this case, D was unable to escape liability by relying on warning notices because they did not enable the visitor to be reasonably safe (ie they were not adequate under s(4)(a) of the 1957 Act)

    The defence of consent was rejected because the deceased was not aware of the problems of the ropes and therefore could not consent to the risk of injury through D's negligence merely by standing in front of a safety rope to watch a race.

    However, the deceased's claim failed because D had taken reasonable steps to draw the deceased's attention to a clear exclusion notice. (nb- this was before UCTA 1977)
  55. Occupiers' Liability Act 1984 s1
    Occupiers' Liability; non-visitors

    s1(1)(a) of OLA 1984 states that a duty of care is owed to anyone other than visitors (ie it applies to people who do not have implied or express permission by the occupiers to be on the premises)

    Also covered are entrants under the 1957 Act:

    s1(4) people who enter land pursuant to the Countryside and Rights of Way Act 2000 or entering under an access agreement or order under the National Parks and Access to the Countryside Act 1949

    s1(7) people who exercise private rights of way over land. (not public rights of way- ie roads)
  56. Occupiers' Liability Act s1(3)
    Occupiers' Liability; non-visitors; DofC requirements

    s3(1)(a) The occupier must be aware (or have reasonable grounds to believe) that the risk exists.

    s3(1)(b) The occupier knew (or had reasonable grounds to believe) that the non-visitor is (or may be) in the vicinity of the danger

    s3(1)(c) The risk is one which, in all the circumstances, the occupier may be reasonably expected to offer some protection

    Factors that may be important in terms of assessing whether it is reasonable to expect the occupier to have offered the trespasser some protection under s1(3)(c) are:

    - the nature and extent of the risk. How serious is the potential risk? Is it obvious or hidden? The more serious the potential risk, the more likely the court will find that it would be 'reasonable' for the occupier to offer the non-visitor protection.

    - They type of trespasser. The court are more likely to find that children or inadvertent (innocent) trespassers deserve protection.

    - The cost and practicalities of taking precautions.
  57. Donoghue v Folkestone Properties; Rhind v Astbury Water Park
    Occupiers' Liability; non-visitors; duty of care; s1(3)(a) and (b)

    Both Cs were trespassers at the time of their injuries.

    In Rhind, C was originally a visitor but exceeded the scope of permission he had by diving into a lake.

    In Donoghue C failed to satisfy the conditions in s1(3)(b). At the time of year (winter) and the time of day (night) in question the occupier did not have reasonable grounds to believe a trespasser would be swimming off Folkstone harbour.

    In Rhind C failed to satisfy s1(3)(a) as the occupier did not have reasonable grounds to believe there was any obstruction in the lake (ie he did not know about the danger)

    Therefore, 'reasonable grounds to believe' require actual knowledge of the facts which would lead the reasonable occupier to be aware of the danger or presence of the trespasser.
  58. Occupiers' Liability Act 1984 s1(4)
    Occupiers' Liability; non-visitors; breach of duty

    The 1984 Act requires the occupier to take such care as is reasonable in the circumstances. The standard is the reasonable occupier.

    The circumstances the court may consider are:

    - nature of the danger (hidden or obvious?)

    - the age of the trespasser (adult or child?)

    - the nature of the premises (how dangerous are they? eg a private house or electrified railway line?

    - the extent of the risk (high or low risk of injury?)

    - the cost and practicalities of taking precautions (ie how easy would it be to remove or reduce the risk and what would such measures cost?)

    - the nature and character of the entry (eg burglar, child trespasser, or adult inadvertently trespassing)

    - the gravity and likelihood of injury

    - the foreseeability of there being a trespasser (ie the more likely people are to trespass, the more precautions must be taken)
  59. Occupiers' Liability Act 1984 s1(5)
    Occupiers' Liability; non-visitors; breach of duty

    Provides that the DofC may be discharged where the occupier has taken reasonable steps to warn the visitor or 'discourage' them through any barriers.
  60. Occupiers's Liability Act 1984 s1(4),(8) and (9)
    Occupiers' Liability; non-visitors; limits to duty of care

    s1(4) and (8) duty is only owed in respect of 'injury'.

    Section 1(9) defines injury as 'anything resulting in death or personal injury, including any disease and any impairment of physical or mental conditio.'
  61. Occupiers' Liability Act 1984 s1(6)
    Occupiers' Liability; non-visitors; defences- volenti

    No duty is owed 'in respect of risks willingly accepted' (ie volenti defence applies under the 1984 Act)
  62. Ratcliff v McConnell
    Occupiers' Liability; non-visitors; defences- volenti

    The trespasser's claim failed because D was able to establish that under s1(6) the C was aware of the risk of diving into a partly drained swimming pool with very shallow water and willingly accepted it.
  63. AC Billings v Riden; Buckland v Guildford Gas Light & Coke Co
    Occupiers' Liability; contractors as non-occupiers

    The HofL held that where a contractor is not an occupier for the purposes of the 1957 or 1984 Act, liability turns on the common law of Negligence.

    It is an established duty situation that a contractor owes a DofC to take reasonable care to avoid harm to people he could reasonably expected to be affected by his work, including trespassers [Buckland v Guildford Gas Light & Coke Co]
  64. Donoghue v Stevenson
    Liability for defective products; common law negligence; duty of care; 'product'; 'consumer'; reasonable possibility of intermediate examination

    Lord Atkin established that manufacturers owe a DofC to consumers in respect of defective products provided the product reaches the consumer in the form which it left the manufacturer with no reasonable possibility of intermediate examination.

    • 'Product'
    • As Lord Atkin talked about an absence of care in 'putting up' a product, it is clear that the duty extends to items supplied with the product (eg packaging, containers, labels, instructions) not just the 'product' itself.

    • 'Consumer'
    • Lord Atkin's neighbour principle extends to all the people the manufacturer may have in mind as likely to be injured by any failure to take reasonable care on its part.

    This means that 'consumer' could extend beyond that actual consumer of the product. Therefore, if a car is repaired negligently, the 'consumer' could be other road users, pedestrians or even owners of property damaged by the car.

    • Intermediate examination
    • The ginger beer bottle was opaque and the manufacturer must have known it was not likely any consumer would be able to examine the product before consuming it. Therefore, a DofC was owed to the consumer.
  65. Andrews v Hopkinson
    Liability for defective products; common law negligence; 'manufacturer'

    Suppliers may owe a DofC under the narrow rule if the circumstances are such that they ought reasonably to inspect or test the products which they supply (eg because the manufacturer told them to do so).

    They could also owe a duty if they actually know of a defect/ danger.

    In this case the supplier was found liable because the defective steering could easily have been discovered by a competent mechanic. The supplier was under a duty to check the steering because of the car's age (the defect being a common one in cars of its age) and because of the potentially serious consequences of allowing a car with defective steering to be driven on the road.
  66. Stennet v Hancock
    Liability for defective products; common law negligence; duty of care; 'manufacturer'

    Installers of products may be 'manufacturers' for the sake of common law defective product negligence.
  67. Kubach v Hollands
    Liability for defective products; common law negligence; duty of care; intermediate examination

    The manufacturer of a chemical escaped liability because the company had included an express warning that the chemical was to be tested before use. Such a test would have revealed the problem. As the manufacturer believed the test would be carried out, there was a 'reasonable possibility' of intermediate examination so no duty arose under Lord Atkin's narrow rule.

    The school escaped liability even though they were a 'supplier' (they had supplied the chemical) because they had not been warned of any problem with the chemical. They could therefore not foresee any potential harm.

    However, the intermediate party that supplid the school with the chemical was liable. Because of the knowledge of the need to test before use, they owed a duty of care to the girl, which it had breached by not giving sufficient warning and so had to pay compensation.

    Nb- if the examination by 3rd party (eg supplier) or by the consumer himself would not reveal the defect (because it is a hidden defect) the manufacturer will not be exonerated.
  68. Murphy v Brentwood
    Liability for defective products; common law negligence; duty of care; PEL

    Duty under DvS's narrow rule would cover any injury to persons or damage to property done by the defective product, but not to the product itself.

    Therefore the reduction in value of the product, the cost of repairing or replacing the product would not be covered by the DofC.
  69. Daniels v R White & Sons
    Liability for defective products; common law negligence; proof of breach

    It is up to C to prove D's breach. However, in cases of liability for defective products this may be very difficult to establish. In DvS Lord Atkin said in obiter remarks that res ipsa loquitor cannot be relied upon in cases of product liability.

    Thus, in some cases even though negligence appears obvious on the facts, C may struggle to find sufficient evidence to prove D's breach.

    In this case, C was unable to prove a fault in the manufacturing process even though carbolic acid was discovered in her lemonade.
  70. Grant v Australian Knitting Mills
    Liability for defective products; common law negligence; proof of breach; defences- volenti

    C suffered severe dermatitis due to the presence of sulphur in some underwear which D had supplied. C could prove the presnce of the chemical in the factory and in the underwear, but could not show any specific problem in the manufacturing process.

    Nonetheles, the Privy Council inferred that the chemical would not have been present in the underwear had D taken reasonable care (ie it inferred breach of duty)

    Basically, C must prove some facts on which the court can make an inference of negligence and, once that inference has arise, D can rebut the inference of a breach of duty by proving that the defect was not due to D's lack of care but some other problem.

    Also, Lord Wright said 'the man who consumes or uses a thing which he knows to be noxious cannot complain in respect of whatever mischief that follows because it follows from his own conscious volition in choosing to incur the risk or uncertainty of mischance.' (ie volenti may succeed as a defence, if C's conduct indicates a willing acceptance of the risk)
  71. Evans v Triplex Safety Glass
    Liability for defective products; common law negligence; causation

    In some cases factual causation may be hard to establish in liability for defective products due to lapse of time.

    In this case C's windscreen shattered 12 months after it was fitted by Ds. It was impossible to prove that it was Ds negligence that caused the damage.
  72. Consumer Protection Act 1987 s2(1)
    CPA 1987; who can sue under the Act?

    A person may sue under CPA 1987 provided they:

    - have suffered damage caused by a defect in a product.
  73. Consumer Protection Act 1987 s5
    CPA 1987; is the damage covered by the Act?

    The 'damage' covered by the Act includes:

    - loss of, or damage to property provided it exceeds 275GBP in value - s5 (3) and (4)

    - it does not include the cost or repairing or replacing the product itself (ie PEL) - s5(2)

    - damage caused to business property is outside the scope of the Ac. Property will be excluded from the Act if it is 'not mainly for private use'- s5(3)

    - the minimum claim of 275GBP does not apply to personal injury- s5(1)

    The restrictions here in comparison to common law negligence relate to business property and also the limitations to claim for damage to property.
  74. Consumer Protection Act 1987 s1(2)
    CPA 1987; 'product'

    'Product' is defined widely as 'any goods or electricity and... includes a product which is comprised in another product whether... a component... or raw material.'

    This could therefore included components like an engine in a car.
  75. Consumer Protection Act 1987 s3
    CPA 1987; 'defect'

    There will be a defect if the safety of the product is not as persons are generally entitled to expect (ie it is unsafe)- s3(1)

    In order to decide the level of safety a person is generally entitled to expect, s3(2) sets out some circumstances to be taken into account, including:

    - the whole-get and presentation of the product (including packaging, instructions, warnings);

    - what the expected use of the product is;

    - the age of the product in question.
  76. A v National Blood Authority
    CPA 1987; 'defect'

    It was found that the consumer expectations for blood products were that the blood would be free from viruses. In this case, D was not negligent as there was no way of detecting the virus, yet the blood (product) was still defective within the meaning of s3.

    This demonstrates that DofC under the CPA 1987 is more onerous that that under common law negligence, which is satisfied where D took reasonable care. In this case, D could not have detected the problem.

    Additionally, it differs from CLN in that there is no evidential burden on C to prove the presence of a breach since there is strict liability if the product is defective for the purposes of s3 of the Act.
  77. Consumer Protection Act 1987 s2(1)- (3)
    Consumer Protection Act 1987; who is liable to be sued under the Act?

    The four categories of Ds identified in the Act are:

    s2(2)(a) the producer of the product

    s2(2)(b) anyone who has 'held himself out to be the producer of the product' (ie own-brander)

    s2(2)(c) any person who has imported the product into a MS from a place outside the EU in any course of business to supply it to another (ie an importer)

    s2(3) any person who supplied the product if that supplier fails to identify within a reasonable period after receiving a request, the person who supplied the product to him.
  78. Consumer Protection Act 1987 s4
    CPA 1987; defences

    s4(1)(a)- defect was attributable to compliance with legal requirements;

    s4(1)(b)- D did not supply the product to another (applies to stolen or counterfeit goods)

    s4(1)(c)- D did not supply the product in the course of business

    s4(1)(d)- the defect did not exist in the product at the time it was supplied (covers misuse, wear and tear and 'best before' dates on perishables)

    • s4(1)(e)- 'developments risk'. D must prove that the state of scientific knowledge was such that the defect was unknown and unforeseeable when the product was circulated (judged against highest standard in the world- Commission v UK)
    • This defence only applies to risks that are unknown, not those that are known about which D could do nothing about- National Blood Authority

    s4(1)(f) The manufacturer of component parts is not liable for a defect in the finished product which is wholly attributable to the design of the finished product or to compliance with the instructions given by the manufacturer or the finished product.

    In addition, contributory negligence may apply where C is partly responsible for his own loss- s6(4)