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paper 2 - Coggle Diagram

- - - - Makonjoula v Metropolice: not liable bc he wasn't in the course of emplyement
  - - - cox v ministery of justice (recent) , Muhammed v
- - - - So in Donoughe v stevensone , the claimant went to a cafe and whilst she was drinking she found a bee in her drink. It was eventually held that the mannufactors 'ought to have (the claiment) in their contemplation' and so they were liable. We also get the neighbour principle from Donoghue v Stevenson from Lord Atkin.
        In Daniels v White , something similar had occurred (hence they used donoghue as a precedent). Man had drank a lemonade that had a corrosive chemical in it. He sued the manufacturer and won by using Donoughe v Stevenson
    - - The practise statement is rarely ever actully used. The most signifiant case was Herington v British railways board 1972 , were they tried to impose a duty onto children. But this was overuled by Addie v Dumbreck.
        
        +
  - - - Overuling/ Reversing
        
        The judge knows that the precednt is similar to the case , but the judge doesn't want to use the precedent to make a decsion . This is caled reversing or overuling. It is always a higher court changingt he decision of a lower court. It always happens in the same case on appeal.
        
        Overuling ; The curt has a precedent that they think is wrong and then overules it (changes it)by making another decision .
        
        so basically the old precedent get destroyed and forgotten about
        However not every court can do this!
        
        example case , Pepper v Hunt , HoL overuled it's earlier decsion on the use of Hansard in Davis v Johnson 1979
        
        Reversing ; happens in an appeal court when the the udge thinks the dfendant should win rather than the claiment. A precedent could be there , but the appeal court can say it is wrong and reverse it.
        
        example case : Davis v Johnson where the HoL reversed the decision the appeal court that would have allowed courts to use Hansard to help determine what parlimant meant by an act
      - Distinguishing
        
        A court can avoid a precedent when the judge finds that the facts are too dissimilar.
        
        example case ; balfour v Balfour 1919 distinguished in Merit v Merit 1971
        Howeever , just b/c a case gets distinguished doesn't mean that that case now has validity. It would be used for some other case. The current case will be used as a precedent for other cases in the future
        
        there must be a material difference (like a contract) , that shows that there could be a legal consequence.
        
        facts in balfour v balfour ; ........................
        
        Facts about Merit v merit ; written contract showing they inteded to get divorced
- - - - Ratio decidenti = decision of th case that is binding on lower courts. Supreme cout decsions are binding on lower courts like the magistrates court (not the other way round)
      - Obiter Dicta = no binding decison it's perusaisive commentary.
      - Duty of care (2nd ingredient)
        
        Donough v stevenson ; the claiment had a wasp in their drink and sued and won against the manufactures.
        Held the manufacturer of a product which cannot be checked before it's consumed owes a duty of care to the ultimate consumer not to injure him by his negligence- Obiter dicta
        
        Obiter dicta The Neighbour principle : Lord atkin ' person's who are so closely and directly affected by my actions , i ought to have them in my contemplation'
        
        Hill v west yorkshire ; police did not want to arrest a man who they suspected had been a serial killer, because they knew they didn't have enough evidence to secure a conviction. The suspect ended up killing someone , the family sued an lost.
      - Breach of duty
        
        defedant fell below the defendant has fallen below the relevant 'standard of care'.
        
        Reosonable man
        
        Professional standard
        
        Professional standard ( from Bolam v Friern Hospital) : professionals (eg doctors) are held to a higher standard of expected care bc they are expected to have more skills than the average reosonable man.
        
        What is the standard of care for proffesionals?
        1) does it fall bellow the ordinary compotent memebre of their profession?
        2) Would a substantial body of professional opion support D's conduct/actions?
        
        Reference cases for Professional standard : Bolam v Frein hosipital , claiment was undergoing an electro ocnvulsion therapy. The doctor did not give a relxant drug and the claiment ended up getting a serious fracture. Claiment argued that the doctor breached his duty. Held- if other professionals of the same field say they would have done the same thing then the defendant would escape liability (and vice versa).
        
        1 more item...
        
        Reosonable man from (Blyth v Birmingham) : a reosonable man is a compotent ordinary person who the defendant's conduct will be compared to decide whether what they did is what a compotent civilian would or wouldn't have done.
        
        Reference cases for reosonable man:
        Blyth v Birmingham , fire plug had burst and flooded the claiment's house. The claiment argued that Birmigham should've done more to prevent this.
        Held - there's nothing they could have done , the extreme weather was unpredictable too.
        Hall v Brooklands Auto-racing club racing cars had a collision , and flew and had killled two spectators and injured a few. One sued and argued that D had not taken enough precautions to prevent such thing from hapeing.
        Held - not liable , because they could not have reasonably foreseen this issue as in their 20 yr business , no such thing had ever happened. The reosonable man in this case wouldn't have done anymore or less than what D had done , because they wouldn't have needed to as nothing like that had happeed before.
        
        Risk factors
        
        ( the risk factors)
        
        the standard of care should be raised (Paris v Stepney borough council)
        
        Reasonable would've taken more/less risks
        
        Claiment has special characteristics? (Paris v Stepney borough council)
        
        What's the size of the risk?
        
        appropiate precuations been taken?
        
        Were the risks known [at the time]?
        
        public benefit to taking the risk?
        
        Causation (3rd ingredient) there's 2 types legal and factual.
        
        Legal causation : is it by mere chace ?
        
        Factual causation : 'but for' the actions of D would C have sufferd the harm? If not then D is the FC, if yes then D is not
        
        Test failed in Barnett v Chelsea & Kensington hospital where the doctor sent the claiment home though they had a serious stomach ache.
        
        Test failed again in Wilsher v Essex Area health authority : a baby was born prematurely , the doctor gave basically no oxygen and then gave too much. The parents tried to sue and argue that the doctor caused it.
        Held : the doctor was not liable because there were four other factors that could have caused the baby to end up blind.
        
        Test succeeded :
        
        Novus actus
        
        Breaking the chain of causation :
        
        Egg shull rule :
  - - - 8 marker=12min. 12marker=18mins. 20marker=30mins .
        Order=do problem question last or question that you ging to spend the most time waffiling on
    - - Breach of duty
        
        An idea for reform (change), different schemes to compensate people(used in other countries), reform propsals:
        
        Standard of care
        
        Risk factors (it will tell us if the defendant's conduct was reasonable under the circumstances)
        
        have to prove there was a duty of care and causation
        
        Canada - workplace.
        All you need to prove is that you suffered an injury in the course of employment.
        
        You don't need to prove a duty of care(bc your'e and employee)-
        
        Who pays?
        Basically , the more employees a business has , the more tax they have to pay. Then that money is used to compensate the claiment.
        :check: it compensates the victim
        :red_cross: Doesn't deter negligent behaviour from the employer b/c regardless of whether they are doing a good job as an empoyer or not , all they need to do is payout.
        Why our system is better.
        In this coutry , our compensation scheme for claiments is much more better at detering wrongdoing from employers because
      - Duty of care
- - - - once you exceed your permisision you become a trespasser Ab nitio (from the begging)
    - - Duty of care
        
        s(2)3 a OLA1957 " an occupier must be prepared for children to be less careful than adult
        
        aluerments
        
        Glasgow corporations v tailor : kid ate a poison berry and it was held that the corparation was liable because they did nothing to prevent danger to a kid who would be intreged to this berries
        
        forseable carelessness
        
        Bourne leisure v Marsden : family went to a campsite , toddler wonderd of and drowned in a puddle. Bourne leisure not held liable because there was nothing they could have done to prevent that (and also it was safe for them to assume that children would be monitored by their parents).
        
        Phipps v Rochster :kid injured himself whilst playing on a building site that was somewhat dangerous. Held that the defendants weren't liable because the responsibility rested on the parents , to have their children play in dangerous areas.
        
        From this case we get the Phipps rules.
        1)older children are xpected to be more resonsable than younger children.
        2) Occupiers can expect that children will be supervised by adults.
        
        risks that only apply to children : eg a child might fall through a gap in the sctairs
        
        Moloney v Lambeth : Moloney V Lambeth LBC ; children/young children had gotten into a delerted house (owned by the council) , one of them fell through a broken hand rale in the stairs and was injured.
        Held ; the occupier was held liable b/c they were small children.
        
        s(3)b OLA1957 : people excersing a calling : “an occupier my expect that a person,in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, (risks that would commonly occur in this line of work) so far as the occupier leaves him free to do so.”
        
        How occupiers can transfer liability : if the occupier checks these avoid they can avoid liability and the IC will compensate the claiment instead.
        
        It's reasonable to get an IC to do the work.
        
        The IC was compotent to do the work
        
        O must have checked to work once it was finished (if able to)
        
        and check the if the IC is compontent (can see this by seeing if they have insurance)
        
        Test failed :red_cross:in Wood wood v Mayor of hasting , where a kid got injured on th stairs and the O did not check that the stairs had been done properly.
      - Why is D an occupier?
        
        Is C a visitor?
        
        Is there a danger in the state of the premises
        
        Is C a child
        
        Was C exercising a calling ?
        
        Was the danger obvious?
        
        Was there a warning ?
        - Did D do something else to satisfy the duty of care? :
        
        Was there an IC? ( Are they compotent (insurance?) was it reasonable to get an IC? Did O check the work?) (bottomley v fireworks , willimans v west hartforshire health society , they insurance but ran out the day before the fiar , so the hospital failed the compotent part of the test)
        
        Did C exceed their permission?(tresppassers, was it from the begging (ab nitio)? -
        
        Did D know (have reasonable grounds.. )that T would come into the vicinity of the danger?
        
        Is the danger on against which it is reosonable to expect some protection
        esily fixable hole in BRB v HErington on the flip side ,
        guy falls into the whole in a carr mechanic place
        
        Did D know (have reasonable grounds to beleve) the danger exists?
        Cole v Davis gilbert , theres nothing gilbert coould have done reoasonably
        
        Is there an exclusion/limitation clause?
        
        Does UCTA apply?
        section 2 unfair terms contract , the exclusionary clause solly apply to property damage nothing else !
        
        consent- know and understand and accpet the risk
        what makes C a tresspasser ?
        
        clear conclusion is needed in the end
      - OLA 1957
        
        s(2)1 : an occupier owes the same duty of care , the common duty of care, to all visitors
        
        s(2)2 s(2)2 OLA 1957 : " take such care ,as in all circumstances of the case, is reosonable to see that the visitor , will be reosonably safe ... for the purposes for which he is invited...by the occupier "
        
        reosonable grounds does not guarentee safety
        
        Tomilson v Congleton ; claimant had injured himself after diving into a lake that had clear warnings saying not to dive in. Held: warnings were put in place, the claiment was a tresspaser. it was held that the danger arouse from the claiments act not from the congelton (borough council). So this case shows that the *danger must come from the stae of the premisis .* (in this case their was none) So even though they put precutionary meaures doesn't mean your safety is guaranteed!
        
        Cole v Davis ; Mrs cole was drunk and twisted her ankle whilst wallking in a village green. She argued that the Gilbert's did not take enough care to sort out the whole.
        Held : nothing the Gilbert's could have reosanbly done
        
        Marssden v Bourne Leisure ; Family was setting up a camp , where their toddler ended up wondering of , falling into a puddle and drowning then dying. Family argued bourne leisure hadn't done anything to prevent this.
        Held : nothing bourne leisure could have reosnably done anyway, and bourne leisure were entitled to assume a toddler would be supervised by parents anyway.
        
        s(2)4 : an occupier should expect that professionals (like an electricion) should know the risks of their job
        
        warning
        
        very obvious warnings do not need a warning sign
        
        Staples v West Dorset : claiment slipped on algae
        
        Davy v National trust : husband drowned in pool
        
        Westwood v Post office : claiment got injured after hurting himself in post office. Thing is the post ffice had a clear warning saying danger get out, so the post office was not liable
        
        Warnings : s(2)4a must be enough in all circumstance to enable .Must be seen by the visitor . must be capable of being understood by visitors , A warning alone is sufficent
        
        Test to shift liabilty to the IC :
        
        if it was reosonable to hire a contractor
        
        O must have checked work
        
        Harlseldeen v Daws : person gets injred in lift, occupier not held liable bc the independent contractor
        
        another exaple GWilliam v West harforshire
        
        example case of when the occupier couldn't shift liabilty : woodwood v mayer of hastings where a kid slipped at school and the occupier didn't check that the work was properly done by the IC. Bottomly v .Todmorden cricket club . bc they had no insurance (ICs) the occupiers automatically were liable bc they failed the test
        
        s(3)b OLA1957 : people excersing a calling : “an occupier my expect that a person,in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, (risks that would commonly occur in this line of work) so far as the occupier leaves him free to do so.”
        
        example case : roles v nathan : two chimney boys ignored th advice given by a heating enginer about dangers of the carbon monxide. they were told to come back the next day , they didn't listen and went back the same day and died.
        Held : the defendant was not liable , the risks were ordinary to their type of calling so they should have knwon to listen .
        
        How occupiers can transfer liability : if the occupier checks these avoid they can avoid liability and the IC will compensate the claiment instead.
        
        The IC was compotent to do the work
        
        O must have checked to work once it was finished (if able to)
        
        and check the if the IC is compontent (can see this by seeing if they have insurance)
        
        it's reasonable to get an IC to do the work. The IC was compotent to do the work,
        
        O must have checked the work if able to do so (Failed in WOODWOOD v Myor of hastings
    - - Invitees
      - contractural rights
      - licensee
      - legal right