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TORT = Civil wrong, The Consumer Protection Act 1987 ('CPA')…

- - - - FORESEEABILITY = D shouldve reaonsably foreseen damage would occur to claimant = if no foreseeability no duty e.g. looking at accident and injured no duty
      - PROXIMITY = not physical proximity, when legal relationship is sufficiently close to give rise to the DoC for injury that occurs
      - 3.FAIR JUST REASONABLE = courts considering number of legal and policy matters e.g. flood gates arg if duty cast too wide OR imposition of duty can be practically and fairly implemented
    - - EXCEPTION = claimant exercise high degree of control over claimant, therefore shoud have responsibilty for claimants safety e.g. jailer holding prisoners in custody
      - EXCEPTION = defendant assumes responsibilty over claimaints wellbeing, assumption of responsiblity commonly arises from contractual/emplyoment situations e.g.lifeguard
      - EXCEPTION = defendant created or adopted risk e.g.indiv seeks to carry out rescue duty not to make situation worse
    - - act way reasonable and prudent person would do in similar circumstances. true even when inexperienced at activity e.g. learner driver of ordinary skill and experience / psychiatric episode still judged against normal person. GENERALLY doesn't take into account general characteristics of defendant
        
        SPECIAL STANDARDS OF CARE
        
        CHILDREN = foresight and prudence of normal child at that age. still objective doesn't take into account specific child's intelligence or experiences ONLY AGE
        
        PROFESSIONALS = exercise knowledge and skill of an ordinary skilled person in that profession. standard of knowledge possessed by profession at time of accident.
        Trainee professionals same standard of care as professional
    - - PURE ECONOMIC LOSS
        
        CONSEQUENTIAL ECONOMIC LOSS - arising from physical injury or damaged property. RECOVERABLE UNDER ORDINARY RULES OF NEGLIGENCE
        
        PURE ECONOMIC LOSS - unconnected to any physical damage sustained. ONLY RECOVERABLE IF CLAIMANT CAN SHOW SPECIAL RELATIONSHIP between C + D, WHERE D ASSUMED RESPONSIBLITY FOR C ECONOMIC WELFARE
        
        Negligent statement arising from special relationship.
        SPECIAL RELATIONSHIP ARISE = D has specialist knowledge and is aware the C will rely on any info D provides + reasonable for C to do so
      - PSYCHIATRIC HARM - Personal injury - RECOGNISED MENTAL ILLNESS/SHOCK INDUCED PHYSICAL CONDITION (e.g. miscarriage). mental suffering on its own e.g. grief/fright generally not recoverable
        
        CONSEQUENTIAL - recoverable under ordinary rules of negligence like other damages
        
        PURE - harm caused to C without any physical impact / shock of being in danger / shock of witnessing harm to others from D actions
        
        VICTIM
        
        PRIMARY - PERSON IN DANGER WHO SUFFERS PSY HARM FROM 'NEAR MISS' e.g. car missing pedestrian
        
        SECONDARY - BYSTANDER NOT AT RISK OF INJURY WITNESS HARM/DANGER TO ANOTHER
        
        2'ARY VICTIM CLOSE RELATIONSHIP WITH INJURED PERSON
        
        2'ARY VICTIM PRESENT AT ACCIDENT / IMMEDIATE AFTERMATH (sit where C comes upon fallout of incident e.g. mother turning up to A&E)
        
        PSY HARM FORESEEABLE TO PERSON OF NORMAL FORTITUDE WOULD SUFFER A PSY ILLNESS UNDER THE CIRCUMSTANCES
        
        2'ARY VICTIM DIRECTLY WITNESSED EVENTS WITH OWN SENSES
    - - BREACH OF SPECIFIC STATUTORY DUTY
      - VICARIOUS LIABILITY FOR EMPLOYEE TORT (STRICT LIABILITY aka liability without fault)= relationship between D and person who committed Tort = One person liable for the Torts of another
        
        e.g. shopkeeper hired delivery driver, who hit pedestrian, victim can bring claim against driver for negligence even when shopkeeper without fault (e.g. training/vetting driver).
        
        EMPLOYER/EMPLOYEE RELATIONSHIP - employer may claim Indepdnent contractor rather than employee, ultimately court decide. 3 FACTORS INDICATING
        
        EMPLOYEE AGREES TO BE SUBJECT TO EMPLOYERS CONTROL
        
        CONTRACTUAL TERMS CONSISTENT WITH EMPLOYMENT
        
        EMPLOYEE AGREES TO PERSONALLY PROVIDE THEIR SKILL + WORK
        
        Court may look at other factors e.g. uniform / own tools
        
        EMPLOYEE COMMITTED TORT - Q in exam should be clear in facts
        
        TORT COMMITTED DURING COURSE OF EMPLOYMENT - Employee acting in course of employment. outside scope of employment, injured person cant sue employer under Vicarious Liability rules. COURTS FAVOUR CLAIMANT.
        ONE OF THE FOLLOWING MUST BE SATISFIED
        
        EXPRESSLY / IMPLIEDLY AUTHORISED BY EMPLOYER
        
        AUTHORISED ACT CARRIED OUT WRONGFULLY OR NEGLIGENTLY
        
        INCIDENTAL TO THE EMPLOYEES JOB
        
        "Frolic of their own" = deviating from course of employment so much
      - BREACH OF PERSONAL DUTY OF CARE = cant be delegated. Even if delegate to independent contractor still liable.
      - COURSE OF EMPLOYMENT?
      - STANDARD OF CARE - REASONABLE CARE TO AVOID UNNECESSARY RISK - personal duty owed to each employee, standard of care vary for each employee e.g. take into account employee age / experience / physical condition
        4 REQUIREMENTS FOR EMPLOYER DoC
        
        SAFE PLANT + EQUIPMENT - e.g. inspect guards on machines. e.g. broken heater in car on cold day for delivery job
        
        SAFE PLACE TO WORK - employees not exposed to any dangers, any place under control of employer e.g. loose cables/objects falling/passive smoking/assault if no precautions or measures taken.
        CONSIDER - nature + potential risk / work to be carried out / experience of employee / degree of control or supervision employer can reasonably exercise
        
        COMPETENT FELLOW EMPLOYEES - e.g.experience/qualification/train. if someone injured from employee employer may be liable. can also include practical jokes
        
        SAFE SYSTEM OF WORK - physical layout of station / protective clothing / safety notices / training / supervision. EMPLOYER must ensure safe procedures observed by employees. e.g safety gloves provided BUT ALSO make sure worn (TRAINING/REMINDERS/WARNINGS).
        e.g. reduce stress at work if foreseeable employee risk psychiatric harm / stress management for certain employees or departments
        
        IF EMPLOYER BREACHED ONE OF THESE DUTIES ASK "BUT FOR" EMPLOYERS BREACH WOULD EMPLOYEE HAVE BEEN INJURED
        
        NO - causation in fact established. Then look at causation in law
        
        CONTRIBUTORY NEGLIGENCE?
  - - - if activity is important to community taking greater risks may be justified in the circumstances e.g. fighting neighbour fire with hose but damage prop, social utility will be taken into account
    - - MAGNITUDE OF RISK
        
        likelihood of injury
        
        gravity of likely harm
        
        = greater risk of injury / more likely to occur = defendant has to do more to fulfill their duty and avoid liability
    - - EXCLUSIVE CONTROL = thig causing damage under sole control of D = CRUCIAL PART
      - TYPE OF OCCURENCE WOULD NOT HAPPEN WITHOUT NEGLIGENCE = if other possible explanations of how incident occured = doctrine will fail
      - CAUSE UNKNOWN = if D can put forward satisfactory explanation showing no negligence on their part = doctrine doesnt apply
  - - - BREAKING CHAIN - whole chain of events from D? reasonable? , break can be from natural event , from C, from D
      - REMOTENESS OF DAMAGE - dont have to see precise chain of events
- - - - Claims that survive C's death (doesn't matter how died BUT JUST NO NEW CLAIM FOR UNRELATED DEATH)
        
        Loss of Dependency Benefits
        
        Bereavement damages
      - Claims by D's of deceased victim
      - E.G. no claim for death itself - died instantly no pain/suffering OR damage to property = No claim to survive his death BUT can still bring dependency claim
      - DAMAGES for dependants + bereavement =
        
        Claimants financially dependent on deceased
        
        Deceased could have brought claim if survived
  - - - Loss of future income = C cant return to work / role with similar rate of pay (general damages = determined by court) pre accident annual income x predicted years of lost income.
        (= REDUCED BECAUSE losing employment in future (contingency of life)) OR difference in total and reduced salary
      - Expenses = cost of treatment / care / equipment / house adaptation / additional travel costs
      - Loss of past income
        Recover income lost from being unable to work between date of injury -> date of trial
        =_NET LOSS OF WAGES (after tax and NI contrib) SUBTRACT any sick pay
        DONT NEED TO CALC IN EXAM
    - - PAIN AND SUFFERING
      - LOSS OF AMENITY - e.g. cant do hobby or sport
- - - - VISITOR (NON VISITOR = TRESPASSER)
        
        Permitted on premises by occupier
        
        Permitted on premises by statute
        
        Invited on premises by occupier
        
        Occupiers can set limits on visitors on the premises - time and length of stay / restrict access
      - DUTY TO MAKE REASONABLY SAFE = standard of care owed to visitors
        
        Reasonable care under circumstances. REGULAR BALANCING TEST = Magnitude of risk v Practicability of precautions
        
        So visitors will be reasonably safe using premises. PREMISES SAFE NOT VISITORS
        e.g.fix hazard / hire someone to fix hazard / barriers / warnings
        
        WARNING MAY DISCHARGE DoC - must make reasonably safe, alert to danger and special measures needed to stay safe.
        e.g. warning + alternate route
        
        OCCUPIERS NTO LIABLE FOR INDEPENDENT CONTRACTORS - make sure competent contractor, if simple job check yourself to see if proper
        
        REASONABLENESS VARY BASED ON 2 CLASSES OF VISITORS
        
        CHILDREN = poisonous berries / electricity + lights / machinery. Can take into account what prudent parents would do in situation e.g. parents aware of danger to child like ponds
        
        SKILLED VISITORS = occupier may expect worker appreciate and guard for dangers that may not be obvious to ordinary adults. e.g. expect electrician to be safe and turn off electricity
      - DEFENCES
        
        CONTRIBUTORY NEG
        
        EXCLUSION OF LIABILITY FOR PROPERTY DAMAGE
        
        restrictions to what can be excluded - occupier acting in course of business (incl professions + gov auth) cannot exclude liability for Death or PI caused by neg
        
        e.g. boat tour cant say "no liability for injury" but can say "liability for damage / lost property"
    - - PREMISES - SAME AS 1957
      - OCCUPIERS - SAME AS 1957
      - Trespassers protected under 1984 for P Injury BUT NOT property damage
      - DoC TO TRESPASSERS - less burdensome than visitors = duty to take such care as is reasonable under circum to see that trespasser doesn't suffer injury
        WHY - easier to satisfy reasonable standard here than when lawful visitors involved
        
        OCC knows / should know trespasser in vicinity
        
        OCC reasonably could be expected to offer prot against danger
        
        OCC knows or should know danger on premises
- - - - POSSESSION = Exclusive possession of land, but claimant can still sue even if not physically occupied just need RIGHT to land
    - - wrongly set foot, riding, driving, taking possesison of it, placing / fixing anything on it, throwing on it, allow your animals to stray on it
      - indirect = not trespass but nuisance. even branches of tree on your land not trespass
      - INTENT = doesn't need to know land belongs to another, doesn't need to intend to trespass. NO DEFENCE = If you think you have authority or mistakenly think you own it e.g. boundary dispute thinking you own land doesn't matter
      - INVOLUNTARILY = no trespass. e.g. driver loses control or someone is pushed
    - - land + building on land, subsoil, and air space above for normal use of land. e.g. tunnel under neighbouring prop or advert hanging over
- - - - Occupier of land containing nuisance
      - Landlord of land occupier (limited)
      - Creator of nuisance
    - - Duration - e.g. building work going into night
      - Abnormal sensitivity behalf of claimant - MAY make more difficult for C establish nuisance bc D's activity based on objection of reasonable person in the community.
        e.g.rare plants sensitive / sensitive to smells
      - Utility - powerplant less likely to be unreasonable if critical to energy needs of region
      - Malice = on part of D, deliberate purpose of upsetting the neighbour
      - Locality - if residential tolerate lesser interference than industrial envir
        Status can change over time
      - Foreseeability of damage = e.g.activity orinarily cause no damage
    - - DEFENCES
        
        PRESCRIPTION - continuance of nuisance for 20 years without action by affected party ENTITLES D to claim PRESCRIPTIVE RIGHT
        
        STAT AUTHORITY - D not liable for interferences of result of statute e.g. statute authorising powerplant construction = DOESNT HAVE TO BE EXPRESS CAN BE IMPLIED
  - - - DEFENDANT ENGAGED IN NON-NATURAL USE OF LAND =
        
        Extraordinary / abnormal use + Court take into account degree of risk and prevailing standards of the era
      - THING ON LAND ESCAPES AND CAUSES HARM
        -Strict Liability Tort = C doesnt need to show D was negligent
      - D BROUGHT/COLLECTED SOMETHING ON LAND LIKELY TO CAUSE HARM IF IT ESCAPES =
        
        Doesn't have to be inherently dangerous, just dangerous under the circumstances
    - - Unforeseeable act of God =
      - Unforseeable act of 3rd party
  - - - Personal injury
      - Loss of profits
      - Damage to property
- - - - Put out product in final form intended to reach consumer
        -Can extend to persons using / in contact with product
        -Not just by manufacturer also people install/repair products BUT not retailer (usually not inspect product)
      - No reasonable expectation of inspection by intermediary (e.g. between factory and consumer)
      - NORMAL RULES - Breach / Causation / Defences(e.g. contributory neg) + if successful Damages (to property / personal injury / economic loss / BUT NOT PURE ECONOMIC LOSS E.G. DAMGE TO PRODUCT ITSELF)
        
        PROVING BREACH o D
        
        SHOW MANUFACTURER FAILED TO EXERCISE REASONABLE CARE - (sometimes difficult - cant prove in usual way)(hard to obtain evidence from manufacturer failed to exercise Reasonable Care)
        
        INFER BREACH OF DUTY (because defect exists) - when defect could only have arisen from some fault in the manufacturing process (RES IPSA LOQUITUR)
        -Harder time if product made by 3rd party and manufacturer packs it
        -Also difficult if claiming negligent in designing product
    - - 2.CLAIMANT SUFFERED DAMAGE = Anyone can be C even if gifted 1.personal injury or death
        
        OR property damage if property is private use and damage over £275
        NONE FOR PURE ECONOMIC LOSS (DAMAGE TO PRODUCT ITSELF)
      - 3.DAMAGE CAUSED BY DEFECT = Causation in usual way
      - 1.PRODUCT CONTAINED DEFECT = If safety of product is not such as persons generally entitled to expect.
        -All surrounding circums must be taken into account to determine expectations: marketing / presentation (instructions and warnings) / use reasonably put / time of supply
      - D PRODUCER / OWN BRANDER / IMPORTER OF PRODUCT
        
        PRODUCER:
        
        Manufacturer of finished product
        
        Manufacturer of product component
        
        Processor of product
        
        OWN BRANDER:
        Business hold itself as producer of prod by putting own name / trademark on it
        Consumer entitled to assume produce of prod is business that represents itself that way
        
        IMPORTER:
        Liable so Consum potentially has remedy against local defendant instead of suing manufacturer in another country
        
        SUPPLIER - e.g. retail outlet DOESN'T have primary liability BUT supplier may be liable as producer IF FAILS to identify producer/importer in reasonable time requested by C
    - - PRODUCT NOT SUPPLIED IN COURSE OF BUSINESS = and was not acting to make a profit e.g.a free gift to friend made by you
      - EXISTENCE OF DEFECT NOT DISCOVERABLE AT TIME PRODUCT SUPPLIED = producer of product not expected to know (aka state of art defence)
      - DEFECT DID NOT EXIST WHEN PRODUCER SUPPLIED PRODUCT - rebutting RES IPSA LOQUITUR, defect could be caused by age or alteration by Consumer/3rd party