Tort Notes Example

* Employer’s liability for employee’s wrongdoing committed by employee in course employment- strict liability/ absence of wrongdoing by defendant * Employer will not be liable unless employer-employee relationship/ employee must commit a tort/ must be during course employment * Casual potency important.

* Must be committed by an employee- employer/employee relationship: * Distinguished between contract of employment/contract for employment * Ready Mixed Concrete (South East) Ltd v Minister of Pensions (1968): Courts will take a multi-factorial approach as to who is an employee- e. g. express terms of contract, national insurance, liability insurance, provision of tools, control- all depends on the facts) * Control is Important:

* Jennings v Forestry Commission (2008)- control and whose business is of importance- if employee has control and is independent (e. g. contractor who supplies own equipment and could appoint an assistant), they will be deemed to have control and defendant will not be liable for vicarious liability * Institute of the Brothers of the Christian Schools (2010)- no control over school/appointment of teachers * Gravil v Carroll (2008): was tort a reasonably incidental risk to the type of business/ is it fair & reasonable to impose V/L?

* Sufficient connection” between tort and employment: * Lister v Hesley Hall Ltd (2002): A broad approach/ Time and place of wrong relevant but not conclusive/Not enough that employment provided opportunity to commit a wrongdoing * Maga v Archbishop of Birmingham (2010): Opportunity not enough (referred to Lister) * Hawley v Luminar LeisureLtd (2006): the worker’s permanent employee will usually remain liable and the burden of showing employment has transferred to a temporary employer will rest on them.

(Courts reluctance to allow an employment relationship from being established reflects courts willingness to recognise realities of contemporary workplace * Jacobi v Griffiths (1999) ‘claimant must show material risk in harm occurring and employment significantly contributed to risk of harm’ (materially increasing risk by employing) * Rose v Plenty [1976]- wrongful and unauthorised mode of doing an authorised -if employer acting in unauthorised way, school may not be vicariously liable * Must of Committed a Tort:

* Based on Canadian jurisprudence: Bazley v Curry (1999): ‘those who should bear loss of wrongdoing and how best to deter it. ’ * Justifications: * Ensures provision of a remedy for harm/ deter future wrongdoing * Employer should bear risk because of role in creating it * Victim seeks financial compensation as to who is financially placed to deal with it * Loss distribution device- financial loss can be spread across community (Lister) * Encourages greater supervision- employer has responsibility to ensure employee’s act properly * Allocation of risk * Criticism’s:

* Comyn J in Harrison v Michelin Tyre Co Ltd (1985) ‘The large body of case law … is notable for one thing, its inconsistency very often with an immediately preceding case”’ * Not predicated on any wrongdoing of employer and may be entirely blameless- undermines corrective justice * Distributive justice does not reflect rules of V/L- the employee must have committed a tort- if the idea was to really spread losses it would be irrelevant whether defendant acted carelessly/ appears arbitrary- this use of justice does not exist elsewhere.

* Difficult to establish control in current context- employers are expected to show initiative and discretion nowadays * Goes against basic aims of tort- corrective justice (where liability is imposed where defendants actions caused harm and he is responsible * Inconsistent approach may be due to policy reasons behind V/L: * To secure compensation for victim.

* Capacity of employer to spread risk through insurance * Deterrence (incentives to employer to limit risks) * An employer could do all they reasonably expected to day and may still be held liable * The ‘close connection’ test in Lister causes uncertainty: * Claire McIvor- ‘policy driven analysis loosely founded upon a theory of interpretive risk’ * Liability without fault requires adequate justification- the only justification is seemingly ‘spreading the loss’ Occupiers Liability Occupiers’ Liability Act 1957 Occupiers’ Liability Act 1984 “State of the Premises” Gwilliam v W Herts Hospitals NHS Trust (2002) CA Esdale v Dover City Council (2010) CA Occupancy v Activity Duties.

Fairchild V Glenhaven Funeral Services (2002) NB CA Tomlinson v Congleton BC (2003) HL Poppleton v Trustees of Portsmouth Youth Activities Committee (2008) CA Cunningham v Reading FC (1992) QBD The Occupier Wheat v E Lacon & Co Ltd (1966) HL Harris v Birkenhead Corporation (1975) CA Lawful Visitors (OLA 1957) The Calgarth (1927) CA Snook v Mannion (1982) QBD Harvey v Plymouth CC (2010) CA ‘Non-Lawful visitors’ (the threshold conditions under OLA 1984) Rhind v Astbury Water Park (2004) CA Higgs v WH Foster (2004) CA Maloney v Torfaen BC (2005) CA White v City of Albans City & DC (1990) CA Tomlinson Keown v Coventry Healthcare NHS Trust (2006) CA Breach Bourne Leisure v Marsden (2009) CA.

Hughes v Midnight Theatre Co (1998) Gwilliam Tomlinson Darby v National Trust (2001) CA Staples v West Dorset DC (1995) CA Jolley v Sutton MBC (2002) HL Ward v Tesco Stores Ltd (1976) CA Hall v Holker Estate Co Ltd (2008) CA Wombwell v Grimsby Fish Dock Enterprises (2008) CA Tedstone v Bourne Leisure Ltd (2008) CA Platt v Liverpool CC (1977) CA Illegality Vellino v CC Greater Manchester (2001) CA Occupiers Liability: * Deals with the risks posed and the harm caused by dangerous places and buildings * Doesn’t just include buildings, could be driveways, fire escapes etc * The occupier may be liable if he has not taken reasonable care to ensure that premises are safe.

What distinguishes it from negligence is that they have been incorporated in statute * However, when determining whether the duty has been breached and whether the breach caused the loss we refer to ordinary principles of negligence * Occupiers Liability Act 1957- Deals with duties owed to ‘lawful visitors’ (including invitee’s and contractual visitors) * Occupiers’ Liability Act 1984- Deals with duties owed to others who are not lawful visitors (trespassers) Occupiers Liability Act 1957: * S1(1)- an occupier owes a duty of care to visitors in respect of dangers posed to them as a result of the state of the premises or by things done or omitted to be done on them *.

S2 (1)- All lawful entrants are owed the same common law duty of care in respect of personal injury/common law damage suffered on the premises * If an injury is suffered outside the premises then there will be no claim * Common law duty of care owed by an occupier to all lawful visitors who suffer an injury on their premises * The requirements for whether duty of care is owed (case law and 1957 act): 3 considerations: * 1. Who is an occupier? *

2. Who is a lawful visitor? * 3. What are premises? * 1. Occupation and Ownership: * Duty owed by all those in occupation of premises- does not need to be owner * S1(2)- a person who has or is able to exercise sufficient degree of control over premises * Wheat v E Lacon & Co Ltd (1966): no need for exclusive possession/actual occupation- sufficient degree of control will suffice * S 1(3)- Any fixed or movable structure * 2. Visitors: by permission or invitation only:

* S1(2)- only those who have been invited (or treated as) and given permission to enter premises- did C have express/implied permission to be there? * S2(1)- occupier may limit/restrict the duty owe-e. g. limit particular parts of property from being entered, purposes for which they use it etc- if a visitor goes beyond permission they will no longer be treated as lawful trespasser under OL1957. * Snook v Mannion (1982): the occupier may revoke or change terms of permission thus changing the status of a ‘visitor’ but this must be done obviously to the visitor * Harris v Birkenhead Corporation (1975)- absentee occupiers still liable * Duty Owed:

* S2(2): Owes a duty to take ‘such care as is in all the circumstances of the case reasonable to see that visitor will be reasonably safe for purposes he is invited for * Fairly little difference between duty under 1957 act and common law duty * Fairchild v Glenhaven Funeral Services (2002): where claimants injuries were caused by activities carried out on premises but not due to state then 1957 act won’t apply * S 2(2)- courts must consider what is ‘reasonable in circumstances of case’ including degree of care expected (s2(3).

* Will take into account resources of occupier when considering reasonable steps, and reasonableness- Kiapasha (takeaway supreme) v Laverton (2002) * Breach- the case in breach relevant here * Cunningham v Reading Football Club (1992): occupier may be liable for injuries caused by another visitor if due to state of premises * Has occupier breached duty?

* Same principles as negligence- likelihood and gravity of harm resulting from state of premises and costs involved in rectifying damage * Children- occupier must consider children less likely to be responsible than adults (s2(3)(a) * Jolley v Sutton London Borough Council (2000): part of the premises may be an allurement to children thus relevant to establishing forseeability * Phipps v Rochestor Corporation (1955): an occupier is entitled to assume that parent will take reasonable care over children * Persons in the exercise of a calling (those supposed to look after themselves): * S2(3)(b): skilled visitors are expected to guard against special risks associated with their profession (Roles v Nathan (1963) * Warnings: * S2(4)(a): an occupier may discharge duty by giving warning of potential danger * May give rise to risk of volenti/contributory negligence * Warnings may be written/spoken/visual.

* Roles v Nathan (1963): warning will only be sufficient to discharge duty if it is reasonable to enable visitor will be safe * Staple v West Dorset City Council (1995): when danger is obvious-no need for warning * Darby v National Trust (2001): failure to warn about one type of danger will not help claimant if he suffers another * Notes Excluding Liability: * An effective warning will defeat claim as occupier has taken reasonable steps and have discharged duty * Exclusions that prevent duty from arising is restricted by s2(1)/s2(2)UTCA1977 * Occupier is unable to restrict death/personal injury arising from negligence-but may restrict duty in relation to other damage * Faulty Execution of work:.

* S2 (4) (1) (b): When accident is result of independent subcontractor, occupier will not be liable if acted reasonably in entrusting them and checked work has been done competently * May be defences Occupiers Liability Act 1984: * S1 (1): must take reasonable care to ensure that persons other than visitors do not suffer injury as a result of danger due to premises * S1(2) defines premises the same way as 1957 * Occupation and Ownership: * Imposes same duty as 1957 act- is an occupancy duty and does not impose ‘activity duty’ * Duty of Care: * An occupier does not always owe duty of care: 3 factors must be proved (1(3): * 1. The occupier is aware of the danger and has reasonable grounds to believe it exists * 2.

The occupier knows or has reasonable grounds to believe that somebody may come or is within vicinity of danger * 3. The risk is one that occupier may reasonably be expected to offer protection * If all three established occupier will owe duty of care, and occupier will have to take reasonable care to ensure non-visitor does not suffer injury (s1(4) * Tomlinson v Congleton Borough Council (2004)- the risk was not one that the occupier could reasonably be expected to offer protection- affirmed ‘principle of individual responsibility,’ which underpins tort law * Racliffe v McConnel (1999): no duty owed to a claimant who accepts risk of serious injury * 1.

Awareness of reasonable danger: must be aware of reasonable dangerif unaware will not be liable * Knowing of danger is subjective; being reasonably aware is subjective * Rhind v Astbury Water Park Ltd (2004): where defendant has no knowledge or no reasonable grounds to believe in the danger then no duty owed * Reasonable knowledge: defendant must have actual knowledge of background facts which would support an inference of knowledge. Swain v Puri (1996) * 2. Must be in the vicinity of danger at the time the claimant was injured: * 3. Risk must be one that defendant can reasonably be expected to offer protection * Will take into account costs of requiring occupier to take reasonable steps * Discharging Duty: * S1(15): may discharge duty by giving warning or discouraging people to use premises * Unlike 1957 act, all claimant has to do is provide reasonable steps to bring to claimants attention * Criticisms.

* Imposition of liability could been seen as an attack on the liberties of individuals who chose to engage in dangerous pastimes at there own risk * Tomlinson v Congelton Borough Council (2004) rectifies this, stipulating that it is not the policy of the law to require protection for the reckless or the foolhardy which interferes with social amenities and liberties to which others are rightly entitled to. Is this fair? * Tomlinson goes against fundamental notions of tort law: such as concerns of providing compensation and distributing losses throughout the community. Here, the idea of distributive justice was used unusually to limit defendants claim (social cost of finding council liable would be high). HL reasserted importance of individual responsibility, fault and interpersonal justice as foundations of tortuous liability.