Key Points: Tort

Caparo Test: + Duty of Care 1) Harm to C was reasonably foreseeable     - objective test     - Easily satisfied (notwithstanding palsgraf and Bourhill)     -reasonable foreseeability of harm, on its own is not sufficient to fix a duty of care (note callous bystander)     - particular types of claimants.  2) A requisite degree of proximity existed between C and D . Following factors  may  be relevant     - Temporal proximity      - geographic proximity      - relational proximity      - pre existing relationship    - D's control over TP.    3) That it is fair, just and reasonable to impose a duty of care (pub policy)    - Police involved in a criminal investigation    - failed sterilisations performed by doctors    - wrongful births    - barristers    - callous bystanders.  - The incremental test requires that any new Duty of care scenario proceed by way of close analogy to previously decided cases .  Caparo test applies to all  scenarios in which a duty of care is found - but in practice a duty can also be established by :- relying upon existing categorisation ( a distinct scenario which has been recognised - Lord Bridge  - Caparo)- analysing the scenario in accordance with the three part test and incremental test A duty of care may also occur when D has harmed C and that harm results from:  1) A positive act committed by D - a duty arising out of activities will be more readily inferred  2) An omission although the imposition of a duty of care in respect of a defendant's omissions is exceptional. A duty to act arises in very limited scenarios        - Where D fails to control some TP's actions leading to the TP harming the C below        - where d creates some source of danger       - where D knew that a TP was creating a source of danger on D's land and did not take reasonable steps to abate it before the danger spread to neighbours3) D's association or connection with TP , D fails to control the TP and by reason of the Tp's acts C is harmed such that D has created the opportunity for the D to harm C.  Duty of Care may be prohibited by statute :- Wrongful life , child v Doctor (prohibited by statute + common law) - Lee v Taunton & somerset NHS Trust- Unborn claimant v Mother - Partially prohibited by statute. Duty of Care may be limited by statute:- A doctor's duty to warn- An employer's duty to employees to avoid or minimise psychiatric injury. 

Checklist of Conditions for Fairchild principle to apply :- Only one candidate (agent) could have caused C's harm; C was exposed to that agent both tortiously and innocently- D failed to take precautions against the risk of the agent causing C harm (proof of breach)- D's Breach preceded C suffering the precise harm which that agent  causes- C cannot ( because of current limits of human science ) prove, on the balance of probabilities that his harm was the result of the particular exposure to the agent which D's breach brought about- The highest that C can prove is that D's breach materially increased (ie added to ) the risk of harm to him - somewhere between the balance of probabilities and de minimus  principle. Wilsher Scenarioguilty cause : over administration of oxygeninnocent causes : four  others.  This wa s not a McGhee  case as several agents could have caused the blindness all of which baby suffered from therefore causation ultimately failed. Allocating Damages per Fairchild / Barker  v Corus -If C was negligently exposed by more than one D to asbestos and contracts mesothelioma - S3 of Compensation Act 2006 Applies and each negligent D is jointly and severally liable  for the full amount of damages suffered by C.  - If C was negligently exposed by more than one D to some ofhter agent that leads to illness - The Barker v Corus  principle applies and each negligent D is not allowed to escape from the consequences of his negligence altogether but his liability is limited to his proportionate share  of responsibility for C's Damage. The sienkiewicz v Greif scenario- Guilty cause : exposure to asbestos dust in the workplace. Innocent cause: exposure to asbestos dust in the general atmosphere. Despite one employer only and the innocnet cause being environmental exposure, this was a fairchild  type scenario according tot he CA - Causation SUCCEEDED. 

Vicarious liability requires :- A tort -committed in the course of, or within the scope of employment- by an employee not an independent contractor. Possibility of Systemic negligence against an employer also.  - Breach of a personal duty of care owed by the employer Hesley HallAll torts are subject to statute of Limitations Act 1980 - When the cause of action acruesextension of limitation period possible in limited circumstancesgeneral limitation period for torts, shorter for personal injury actionsseparate limitation provisions apply under the HRA, considered in rabone v Pennine Care NHS TrustHeads of compensatory Damages:-'specials' and 'generals'- Also divided into 'pecuniaries' and 'non pecuniaries'- Guidelines for assesment of general damages in personal injury, provide approx amounts based on previous cases. Role of Pecuniary Damages - Non- compensatory- Governed by Rookes v Barnard - Lord Devlin's three categories- Extremely divided opinion. 

General :-Occupiers have an obligation to ensure their land is not dangerous to others. OLA 1957 was introduced to clarify the common law position. Supplemented by the OLA 1984, which covers injuries to trespassers. - Liability falls upon the occupier of the land, who may not necessarily be ther person who owns the land. OLA 1957  - Prior to this, the occupiers liability depended on the relationship to the visitors. the OLA abolished this in favour of two categories :  - Lawful visitors (Protected by the act)  - All  others - not protected by the act, although most are now protected by the 1984 act. Implied permission:Applies in cases of delivery men etc. However,  an implied license cannot stretch to cover any form of activity, however reckless - Carnwarth J. If an occupier knows that his land is used by trespassers and does nothing to prevent them from entering his land, this may amount to express permission to enter. Duty of Care; - Although Children have a higher standard of care for occupiers, there is an aim by common law to mediate between duties of parents and occupiers. It is likely however that landowners/occupiers will be held liable if held to be concealing dangers etc. - The level of care expected will depend on the nature of the risk and age and awareness of the child. - Titchener v BRB - No duty was owed to a 15 year old boy struck by a train whilst walking on the railway as he should have been aware of the dangers posed by his activity. - Skilled visitors: expertise should require them to take greater precautions to protect themselves, does not mean occupiers have no liability towards skilled visitors. Warning signsWhere damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to make sure the visitor was reasonably safe. - S 2(4)(A)OLA Factors to be taken into consideration:- how specific was the warning?-How obvious was the danger? Staples v West Dorset district council -  wet algae on wall so obvious as to not need a warning-Is sign combined with other safety mechanisms?-what sort of visitor is targeted?Independent Contractors With regards to checking whether the standard of work has been accomplished:- If work not complex unreasonable for occupier not to check that work was not properly done : woodward v mayor of Hastings  - Clearing ice off steps not difficult-If work is complex or technical the occupier will not be expected to appreciate risks only visible to experts.- Haseldine v Daw  - Restoring a lift too technical, occupier discharged of duty by having employed a reputable contractor.OLA 1984 - Extended to cover trespassers, people lawfully exercising rights of way, visitors to land covered by national parks Act. Duty of care: - Nature and extent of risk, was it obvious or hidden?-what sort of trespassers? higher duty of care to children - Young v Kent County Council - if defendant had been adult instead of 12 year old they would have received nothing. -Could danger have been reduced by precautions?

General:- READ NOLAN 2005 ARTICLEThe rule  is somewhat anomalous  and it was said per obiter in the House of Lords that it was basically a manifestation of private nuisance. Rylands v Fletcher A case where water from a reservoir escaped and flooded a mine. The defendant had not been negligent, and there was no claim in private nuisance as D had taken care and skill to find a suitable contractor. Defendant's liability was established on the basis that 'the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and if he does not do so, is prima facie  answerable for all the damage which is a natural consequence of its escape. - Blackburn J  approved in house of lords with Lord Cairn  providing what was to be declared as a non natural use of land. - Water was collected and kept in a reservoir that was not natural-Non-natural use of land was the construction of the reservoir. The requirements are: - Collecting and keeping on land-Non-natural use of land- Water escaping from an overflow pipe cannot be described as non natural, as it required some special use bringing with it increased danger to others - Rickards v Lothian - Lord Moulton. -Confirmed in Read v Lyons  where it was declared that what may be regarded as dangerous or non-natural will vary according to the circumstances' taking into account the circumstances of the time and the practice at the time- Lord Porter.  Exemplified by Musgrove v Pandelis  - where in the 1920s it was a danger to keep a car in a garage with petrol in the tank - Transco v Stockport MBC     Escape of water froma  pipe owned by the defendant local authority caused an embankment to collapse, which exposed a gas pipe thus necessitating expensive emergency remedial work by the claimant. HoL held this did not fall within the scope of rylands v Fletcher  on the basis that the supply of water through pipes was normal and routine and not something that presented a particular hazard. The risk presented by any particular activity had to be considered by contemporary standards. As the pipe carried no more than a risk of fracture leading to he escape of water than any other pipe, it could not be considered a non-natural use of land. Lord Hoffman noted that damage to property caused by leaking water was a risk against which insurance was available which supported the conclusiont hat this situation did not meet the high threshold of exceptional risk arising from non-natural use that is required for a rylands v fletcher claim.  -Likely to do mischief if it escapes- The hting collected on the land need not  be dangerous in itself, provided that it is likely to escape and cause harm if it escapes.  - Hiller v Air ministry - electricty kept in cables not dangerous however dangerous when escaped. Crowhurst v Amersham Burial Board  - yew trees were planted in the defendant's cemetary but the branches hung into a neighbouring field and were eaten by the claimant's horse which died. - it escapes and causes harm to property.If the thing escapes and causes harm on D's land then liability under Rylands v Fletcher  will be complete unless D can rely upon a defence provided that harm is caused to claimant's property. Was a claim suggesting personal injury could be recovered for however not anymore. Foreseeability- It was clear at its conception that Rylands v Fletcher  was to be a tort of strict liability as one applicable even if no one had guarded against it. examined by the lords in the Cambridge Water v Eastern Counties Leather case. Relationship with Other Torts- Part of negligence - Burnie port authority -Part of private negligence? or nuisance - Cambridge water - no place in scots low - RHM Bakeries v Strathclyde 

Duty of Care

Causation

Vicarious liability

Occupiers Liability

Rule in Rylands v Fletcher