p 195 law of nuisance. 16.1 and 16.2 (redone)======================================================

law of nuisance. liability, proof of nuisance, locality. noise and vibration. plaintiffs.

a. how do courts gauge whether the subject of a plaintiff’s complaint is a nuisance?

invconvenience as a fact as more than fanciful. not just being fastidious. an inconvenience materially interfering with human enjoyment. not just about being dainty.

if the behaviour substantially interferes with the enjoyment of land or the comfort and convenience of a significant number of people. it has to affect a neighbourhood.

================

b. in the case of AG v Gastonia Coaches how did he defendant ‘s company parking arrangements for its fleet of coaches interfere with the comfort and enjoyment of residents?

in respect of small caused by emission of diesel fumes from coaches and revving.

this was a public nuisance. interfered with the residents by parking in a way that blocked the residents’ spaces.

========================

c. why was the complaint about the noise of repair and cleaning work dismissed?

noises caused by carrying out repairs and cleaning were held not to warrant relief.

=====================

d. why is the issue of the locality important in determining wgether material interference has occurred?

judges are meticulous in examining the extent of the interference to see if it exceeds that to eb expected in an area in which that type of interference is tolerated.

As LJ thesiger said what is a nuisance in belgravia square would not necessarily be so in bermondsey.

===============

e. in the rushmer decision in 1906 why was the operation of presses at night in a fleet street address considered to be a nuisance?

if substantial addition is found as a fact in any particular case it is no answer to say that eh area is noisy and the defendants machinery is of first class character

rushmier v polsue and alfieri ltd. as it was a printing st some noise was to be expected. but there is a limit. too much and too late at night is not on.

==============================

f. in the gillingham borough council decision why did the economic activity in the area defeat the plaintiff’s right to complain?

locality principle was applied in defendants’ favour in a situation in which the passage of heavy dockyard traffic was considered to have converted an area from a residential one to a commerical one.

Gillingham BC v medway dock.

Medway dock got planning permission to develop docks. Then lorries came at all hours causing noise. the court said that as planning permission had been granted this changed the character of the area. People had many chances to object to PP. The court did not want to interfere with what the council had decided. PP is not a licence to commit nuisance though. Economic activity was a valid defence.

========================

g. use the example of the dunton case – address these questions

plaintiff owned small hotel with a garden which was surrounded by grazing land . in 1975 the local council which owned the grazing land built a housing estate upon it. a playground which unfortunately adjoined the plaintiff’s garden was provided for the children.

dunton v DOVER Dc 1977.

this is about decibels in noise nuisance.

i. how was the locality of the plaintiff’s property changed?

it was changed by building a playground and an old people’s home.

ii/. what type of value did the court perceive in playground activity?

social value. balance between young and old

iii. how did the injunction bring relief to the complainants?

it reduced times when children would be there making noise. inunction granted on opening hours – limited use to children under 12. he did not cloe the playground even though some old people wanted to sleep then.

===========================

h. why are courts less willing to impose restraints upon defendants if the complaint of nuisance is made by plaintiffs who are unduly sensitive to the nuisance? give an example about noise.

gaunt case. a nervous or anxious or prepossessed listern hears a sound that would usually pass unnoticed. magnifies it into a new significance and sounds which heard at other times are heard passively.

because the court has to meet an objective standard and not satisfy people who are exceptionally intolerant.

======================================

i. identify the limits if the usefulness of scientific measurements of sound i.e. decibels

exper evidence does have limits. corut forms a view.

most people do not know what decibels mean in practice.,

====================16.2

planning permission and nuisance

coventry v lawrence 2014 UKSC

private nuisance and nuisance by noise

lord neuberger in 77-99. the effect of planning permission on an allegation of nuisance

he said that PP means that the allegations of nuisance is less convincing. planning permission might expressly allow the thing alleged to be a nuisance.

planning permission is a valid defence. it allows certain actitivies. this is about a stadium and a track. he cited gillingham BC v medway dock. noise and dust and vibration can be allowed by PP

lord carnwath the character of the locality

he said this is part of reasonableness. sturges v bridgman

a. what are the two reasons given for the potential relevance of the grant of planning permission for a particular use to a claim in nuisance?

the grant or terms and conditons of PP may permit the noise or disturbance which is alleged by the claimant to be a nuisance. the grant of PP may permit the defendant;s property or another in the area to be used for a specific purpose.

the PP might specifically approve of the nuisance. PP changes character of the area.

=========

b. which question faced the court in its consideration of the effect of the planning permission on claims of noise nuisance?

did PP allow the noise and was that legally binding?

========================

c. why did jackson LJ reaffirm buckley J ‘s decision in the gillingham case in which the residents’ claim of public nuisance for noise vibration dust and fumes was dismissed?

it is the right outcome as planning authority had made decision in public interest and the consequences must be accepted.

Because the dockyard had PP and of course was going to do those things.

==============================

d. paraphrase in fewer than 45 words how the extent of the land development became a factor in the ability of defendants to raise the defence of planning permission?

strategic planning decision affected by considerations of public interest would be more likely to be apply to a major development than planning permission for the change of use a of a v small piece of land.

It is important because some areas are intended for development into an industrial zone and therefore nuisance is expected. Others are green belt and that is very different.

==============================

e. outline the role which compensation may play in correcting the grant of planning permission which causes nuisance to a property owner and give 2 examples of statutory provisions which provide such compensation.

it seems wrong in principle that through PP a planning authority can deprive a property owenr of a right to ibject to what would otherwise be nuisance without providing compensation when there is no privision in planning law which suggests such a possibility

planning act 2008. civil aviation act 1982. land compensation act 1979

it can compensate people for a wrongful grant of PP or for unwarrantable nuisance arising from PP

=========================

f. describe the difficulty which is highlighted in respect of this approach.

it makes it hard for developers/ They have PP they build things and then have to pay compensation.

======================================

g. name at least 4 aspects of the modern world which courts have taken into account in judging the acceptability of the defendant’s activity and the character of the locality.

hunter v canary wharf ltd 1997. lord cooke dissenting

lineaments of law of nuisance were established before TV radio, cars , planes, town and country planning. a crowded island and highetned public consciousness of the need to protect the environment – all these are not factors to consider.

is there statutory authority for the behaviour?

is there 20 years prescription?

is it an unforeseeable act of a stranger?

is the behaviour socially acceptable?

what is the character of the area?

how often and how long lasting is the nusiance?

is the defendant’s behaviour utile?

is the claimant unusually sensitive?

==============================

h. what role does the common law of nuisance play in relation to modern planning and enviromental controls?

common law of nuisance is there to provide residual control to ensure that new or intensified activiries don not need lead to conditons which within the pattern go beyond what a normal person should be expected to tolerate.

planning law has a small role to play. We are not to create an unreasonable nuisance in view of the type of area. You must not release a dangerous thing that occasions harm. On the other hand we must not unduly restrict development.

i. in the example of a prof football stadium in an urban area explain

it is because it is a part of the estavlished pattern of use of the area. football is important.

i. why it would be difficult for a resident to sue for noise nuisance

because stadia necessitate noise. go somewhere else resident.

ii. under which circs the resident might be able to sue.

something about organisation or lack therefoe which takes distrubance beyond the norm.

if the noise was unusually loud even for a football stadium or the nuisance was not of a kind that one would expect from a stadium.

j. does lord carnwath advocate a differentiated approach depending on whether the locality is urban or rural in character?

Yes, he said in urban areas one has to accept some disturbance.

a dream of davies laing

was there. telling deepika and art about something or other . yes punjab and partitoon. India shan’t ucountenance a second secession. then suddenly magyar came and we had to go our urgently.

hurried along the st. forget which erra.d realised I had been out a long while. had to return to davies laing. going this way or that. at hampton station. get off the choo choo? I decided to. was wrong choice. foumd an unlocked rusty old velosipegde. mounted it. pedals dd not work. say on and more or less walked it. stress. too late. no pint. then I realised I was needed at davies laing for something else then it struck me twas 27 dec. no work

breathed a sigh of rlief. was such a mare geting to flughafen yesterday. perhaps thos os delayed anxiety.

desmond tutu ==================================

dead

always heaeing aboyt him

1931. xhosa. teacher. prod.

trevor huddlestone

forelock tugging.

clergy. king s. jerusalem. palestine. langs.

anti apartheid.

bishop.archbishop.

cape town. lived well. wed 4 children.

non violence. went all aroun the world. too moderate or radical.

truth and reconciliation.

castiagted african tyrants. correctly said the colonial era was preferable.

lambasted mugabe. mobutu. racial solidarity.

retirement.

dead

cairo tourism ========

not for the faint hearted

fascinating and fantastic. ancient civilisation. cradle of civilisation. secon country in the world to have writing. oldest nation.

architectural heritage. mosques. churches .synagige. plastic arts . music . entertain,ment

rbrain of the rab world. al azhar. major financial centere

held the gorgeous east in fee.

city vast. 20 mill. pollution. noise. demolition derby. bedlam. disgustful streets

stray curs

giza unbeautiful. backstreets ghastly. foul. littered with refuse.

cairene taxi drivers

ggleplan. do your homework. organised tour. haggle

do nmot acct first price

female visitors. gays/. PDA

p 137 ===============================================

Tort law p 137

Activity 11.1

Focus of core comp is how courts reduce damages due to contributory negligence

Jackson v murray 2015

1. Which statute governs the apportionment of responsibility in claims of contributory negligence and which equitable principle governs the award?

Miss jackson was schoolgirl who got off schoolbus and crossed road without looking. the contributory negligence act.

f. outline the apportionment of contributory negligence attributed to the 13 yr old girl who was a hit by a care when carelessly crossing the road?

90%

g. which standard of care was applied to the actions of the 13 yr old?

reasonable standard of care relative to her age.

h. why in the first instance did the trial judge apportion a v large proportion of the overall responsibility 90% to the claimant?

because she had not looked but simply run out from behind the bus

1. Which reasons were given by the appeal court to reduce the 90% share blame 70%?

that a 13 yr old cannot be expected to be as cautious as an adult.

j. identify the two factors relevant to the consideration of causative potency?

age and driver’s actings.

k. why was blame attributed to the 13 yr old schoolgirl than the driver?

because she had something dangerous

l. according to reid in stapley case what must a court assess to apportion blame?

responsibility. the light CONDITIONS were poor. it was a 60 mph zone.

m. why according to hale LJ in the case of eagle v chambers 2003 is blameworthiness more easily linked to drivers of cars than pedestrians?

miss eagle was 17 and walking unsteadily down road between 2 lanes. miss chambers drove at 35 mph and hit her.

miss chambers had drunk but was just under the limit. she was above the speed limit,

a driver is in charge of something dangerous so must take more care.

n. is the apportionment an exact science?

no

o. when can an appeal court interfere with the apportionment determined by a judge in a lower court?

when it is reasonable to do so.

p. which conclusion did the supreme court reach on the apportionment of blame?

miss eagle 40% culpable.

q. on which grounds did lord hodge in his dissenting opinion favour  the apportionment of two thirds claimant and one third defendant?

Activity 11.2 lord Hoffman in gray v thames trains. Defence of illegality

1. Identify the latin phrase associated with the defence of illegality?

ex turpi cause non fit oritur

claimant had killed a man whilst suffering PTSD.

• Using example of joyce case explain I who committed the wicked act ii what action was taken which was founded on the eact and iii why it failed.

joyce v o brien. they stole a ladder and put it onto a van. joyce fell off and was injured. the court held as in gray v thames trains that if there is illegality then the claimant cannot recover.

Joyce failed due to turpidtude. turpitudinous

• Does the defence of illegality always bar claimant from recovering in negligence?

no

• Summarise in fewer than 100 words the relevant facts of the gray case identifying the illegal act committed and the link between the gray and the defendant thames trains ltd.

gray was in ladbroke grove train crash. suffered PTSD. then stabbed someone to death for irking him a little. gray wanted compensation for loss of earnings due to being in prison. Lords said he could not have it because of his crime.

• Express the causal connection between the tort and the killing in terms of but for causation.

but for the tort causing the train crash he would not have had PTSD and he would not have killed someone.

• Why does the fact that the immediate cause of the damage was deliberate act of the claimant not suffice to exclude liability?

the act might have been partly caused by another.

• How does lord Hoffmann describe the maxim of ex turpi causa?

• Outline the possible reasons why in the narrow form of this policy defendants should not be able to recover damages which result from sentencing result from a crime?

we must not make crime pay. it would offend the dignity of the court. it is immoral. it blurs the line of legality.

1. Outline the possible reasons why in the wider form of this policy defendants should not recover for damage which was the consequences of their own crime?

it incentivises crime.

• Identify 2 justifications for the application of the wider rule.

we want to discourage sharpsters.

p 180 ===================================================

Tort p 180

Activity 15.1

Tomlinson v congleton b c 2003

Occupiers’ liability act 1957 and 1984

1. What do the facts of the case tell us about the age of mr Tomlinson the place where the accident occurred and who owned the land how he injured himself and the extent of his injuries?

He was 18. council owned the land. paralysis.

• At common law to whom did the occupiers owe a duty of care?

all visitors.

• What change did the 1957 O L A bring to common law approach in this respect?

it said that duty was owed to lawful visitors only.

• How is the duty of care of the occupier to visitors define by statute?

to take reasonable care to avoid injury to people on the property.

• Under which circs may the degree of care expected from the occupier vary?

if the visitor is unlawful, if there is a contract, a greater duty is owed to children.

• Name 3 factors which will warrant closer scrutiny by the court to determine whether the occupier has discharged its duty according to the circs of the case?

are there warning signs?

have people been invited onto the property?

what was the nature of the harm that befell the visitor?

• Why under the 1957 act not apply to mr Tomlinson s situation? Which act did apply?

He was there illegally.

the law reform contributory negligence act applied.

• Under which circs may the occupier owe a trespasser a duty of care?

if he ahs invited someone onto the land by placing attractive things there. If he failed to act with common humanity

1. Outline the scope of the duty owed by occupiers to trespass.

to reduce dangers if he is aware that trespassers come regularly.

• What were the policy reasons behind making the duty owed to trespassers under the 1984 act lesses duty to both incident and scope then the duty to a lawful visitor under 1957 act?

because it would be unfair for occupiers to be liable to trespassers and even burglars.

• Which duty arises more frequently the duty to visitors under the 1957 act or the duty to trespassers under the 1984 act? Why?

The former because most people are lawful visitors.

15.2

1. How did the court of appeal in English heritage reconcile the apparent inconsistencies in the decision of the recorder at first instance?

my taylor visited and english heritage property. he walked down a hillside and fell into a moat. injury. EH was liable for not putting up a sign warning people about the sheer drop into the moat. 50% contributory negligence by taylor.

the court of appeal found for edwards . they will look at level or risk and its obviousness. 12 foot drop. aesthetics considered.

• What was the effect of the decision in Tomlinson upon the appeal in Edwards?

edward v SUTTON LBC

court found for Sutton LBC. Usually not duty to protect visitors against remote or blatant risk. he pushed bike over bridge – low guardrails. fell over the side. no need to warn of a blatant danger. we do not want ornamental bridges being ruined with safety features. people cross that bridge endlessly and no danger arises.

tomlinson judgment contributed.

mr

• In the author’s opinion what is the difference between 1957 and 1984 acts regarding obvious danger?

1984 says obvious danger does not need to be warned about

• Applying the understanding of the 2 acts what is the key difference on issue of duty of care between sec 1 1957 and sec 1 1984?

1957 replaces common law. 1984 is about duty to unlawful visitors.

• In your own words explain the authors conclusion regarding the relative merits of statutes compared to common law.

Exam q

Luke is the owner of the methusaleh hotel. It is popular with old people. Is advertised as suitable for them.

Mr and mrs Jackson come on hols. Receptionist told them there was redecoration under way. Jacksons are in their 80s.

Mr Jackson is healthy but mrs J suffers from alzheimers/ after lunch one day mrs J decided she would stay in her room for a rest.

Mr J left her and went to the residents lounge. Mrs J woke up and could not remember where she was. She left her room walked the corridor through door marked private. Staff only. Residents not admitted

She opened door to room being redecorated . 2 members of staff found her and one of them nina shook his shoulder and told him that his wife appeared to be unconscious after a bad fall. Mr J jumped up suddenly and out of his chair. He got dizzy and dell down cutting himself

Advise jacksons

there was contributory negligence by Mrs J but this is to eb expected due to her advanced age. Like children cannot be expected to be cognizant of dangers. the hotel is supposed to be very suitable for elderly people. the hotel could be liable for not locking the door.

Mr J suffered due to what the staff did. But it was not negligent to tell him. Maybe they told him insensitively. they are probably not liable. What they did was reasonable . they had to inform him.

=====================================

Question 2

penny is a student at uni. uni has a dance party. publicity says that it is open to staff and students only. bring your ID. penny goes to party with her 12 yr old bro. bro is v tall and is not challenged by porters. mark s joinery firm has been carrying out minor repairs at the uni and there are several prominent notices – caution repair work in progress

during evening frank goes to loo. bulb missing from outside loo for days. frank runs out of loo along corridor in semi darkness he falls and lands on a chisel that has been left by one of mark’s employees.

frank’s hand is badly injured and phone is smashed.

====================

frank was an unlawful visitor. but that is partly uni fault for not asking for ID.

duty of common humanity is owed to him. OLA 1984.

there was contributory negligence on his part. could have used other loo and not run in corridor or come to uni. he has a case though. duty was owed. everyone knows people try to gate crash parties.

p 167 ========================================================

Tort p 167 activity 14.1

Economic loss and defective premises

1. What was the issue addressed in anns v merton lbc?

duty of care in tort.

• Which 2 aspects of tort law are particularly relevant in the anns judgement?

sufficient basis of relationship of proximity

reason why duty of care should NOT applied to be considered.

true third party negligence

merton council in 1962 approved maisonettes. foundations to be 3 feet or deeper and needed council approval. notice to be given when foundations were completed. council to inspect before rest of building. council could order foundations to be corrected.

1970 defects in houses found due to faulty foundations. cracks in wall and sloping floor

court of appeal found for the claimants in negligence. the foundations had not been properly inspected.

• Why was the description of loss in anns considered to be a misdescription?

because loss was not suffered.

• What was the criticism of the definition of complex structures state the definition and the criticism.

• Why does the survival of Hedley byrne produce different liability outcomes?

hedley byrne were advertising agents

hedley byrne wanted to check creditworthiness of easipower because easipower asked for work to be done on credit.

heller and partners ltd was bank for easipower. Hedley byrne got their bank to ask Hedley and Partners Ltd. Hedley and Partners Ltd they gave a reply saying that easipower was creditworthy but they took no responsibility for this.

easipower went into liquidation and never paid.

Hedley byrne sued. held – there was a sufficiently proximate relationship to create duty of care despite the letter of credit being for free

special relationship. defendant had to be honest. the disclaimer then discharged any liability.

a man is not responsible if he disclaims responsibility.

hedley byrne says responsibility can easily be avoided.

• Why do internal inconsistencies of the common law result in the different liability approaches to builders and surveyors?

yes they do.

• How is the builders’ potential liability for the anticipated costs of repairs defined?

the cost of cure.

• Why is it argued that the wrong defendant is being targeted?

it should be the vendor.

14.2

Bellefield computer services ltd v e turner and sons ltd

an architect can sometimes owe a duty to a subsequent occupier of a building.

Damages in special liability

1. Why did the subsequent owners of the dairy bellefield sue the builders the turner company?

there was a fire that spread due to defective firewall. the architect was held not to be liable. he had designed it but not placed it.

• Consider 6 heads of damage claimed by the subsequent owners . can you identify which heads of damage constitute pure economic loss?

cost of rebuilding. loss of business in that period. physical injury. psychiatric injury. loss of work materials. loss of reputation.

pure economic loss is loss of business.

• How did the judge in the lower court formulate for which of the damages a duty of care is owed by the builders to the subsequent owners of the dairy and for which of the damages a duty of care was not owed by the builders?

it was owed for direct losses such as destruction of property

• Why were damages such as loss of profit and increased costs of working a lost cause?

they were pure economic loss.

• In the appeal by the dairy owners which crucial fact in the case prevented the duty of care of the builders being extended to include the damage to the building and why was this important?

because it limited liability.

• Why did the appellate court reject the argument of an incremental development of the law was held in murphy and this that the dairy should not be regarded as an indivisible building for the purposes of this branch of the law of tort.#

it was a specious argument and without precedent. It would be being too inventive.

• Why does the law of tort limit liability for infliction of financial harm?

because losses would be excessive. everyone takes a commerical risk. they are other ways of making up the lost profit.

• According to lord brandon ‘s dissenting speech in junior books ltd v veitchi co ltd 1982 which difficulties underpin the policy that prevents recovery in tort against the builder in the case for defects in the building that may have caused damage to it?

the loss would be too great for the builder. we would not have enough builders.

cracks on the floor in this case. defective building.

1. Why did the appellate court hold the decision of murphy does not leave room for manoeuvre on the facts of the case?

p 122 ==================

Tort law.  P 122. Activity 91.

Mullin v Richards 1997.

1. How old were both the claimant and the defendant? Describe the injury.

 15. a fragment of ruler in her eye.

• How did the judge in the lower court apportion blame?

Equal.

• In the appeal court judge identified foreseeability as the central argument. Which question did the court have to answer?

It was not reasonably foreseeable.

• Is the standard of care an objective or subjective standard?

Objective is what the reasonable person would have. Subjective is what the party had.

• Which subjective element may children rely upon in their defence?

Children do not realise danger.

• Against which standard is the conduct of a child to be measured?

That of an ordinary kid.

• Why did the appeal court reverse the decision of the lower court?

• Identify a social utility argument as related to the risks of the children playing?

It is good that they play.

9.2

Bolam.

1. Intro.
2. Paraphrase the impact of Bolitho decision on bolam test of breach as stated in the first two paragraphs of the intro section in fewer than 50.

Bolitho – baby brougtht to hospital with croup. doctor failed to see him after he became very ill. he died for lack of intubation. doctor said if she had come to him then she would not have intubated him. The House of Lords found Hackney Health Authority was NOT liable.

the doctor not comong to him was NOT the cause of death. Her failure to intubate the child if she had come to the boy would have been reasonable. He would still have died.

Bolam test said if medical treatment is supported by respectable body of medical opinion then it is lawful.

ii. emergence of Bolitho.

• Summarise the arguments advance in section A perceived deficiencies of bolam in 2 succinct headings and explain briefly fewer than 40 words the main thrust of each argument?

Bolam test treats different medical approaches as equally valid.

it does not do enough against negligence causing death.

• Describe he 2 step procedure in English law which used to determine the question of alleged medical breach.

was their a duty to do something or refrain from doing something?

Was the nonfeasance or feasance the cause of harm?

• Mulheron identifies three scenarios which may restrict the reach the bolam test what are they?

sometimes there is only 1 correct course of action.

the medical opinion has to be RESPECTABLE.

The court can reject respectable medical opinion.

• On what basis does mulheron assert that the Bolitho test has produced an imbalance between the parties in negligence litigation?

the medical profession can close ranks and say that a course of action was reasonable.

Doctors can say even if they had attended they would not have done the lifesaving thing and this can still be held to be reasonable.

iii. post Bolitho

• Identify 7 bolitho factors

the child is gravely ill

doctor failed to attend. Doctor would not have intubated. Only intubation would save the life. The non intubation is held to be reasonable. Therefore the non-attendance is irrelevant.

• In nationwide organ retention group litigation which common practice was held to be unreasonable despite the blanket practice carried out by virtually all clinicians.

retaining organs without consent.

Conclusion

H. reflect on the author’s conclusion . do you agree with the clarification of the Bolitho gloss is of great significance for prof negligence law?

yes

p 126 ===================================================

Tort law. P 126

Activity 10.1

Corr v IBC Vehicles. 2008

corr injured himself repairing a machine at work. had to leave work. became an alcoholic and later committed suicide.

IBC vehciles found liable.

Novus actus interveniens. Lord bingham and lord scott and lord walker

1. What is the definition for the break in causation attributable to a novus actus interveniens according to clerk and Lindsell on torts?

it is that it is an unexpected act.

• Which rationale is applied to decide whether a novus actus interveniens breaks the chain?

If the harm would not have occurred without NAI

• Which question did the court to consider in relation to causation and remoteness?

yes.

• Why would it be unfair to exclude suicide from a foreseeable consequences of an employer’s tort?

Because suicide was foreseeable.

• Does the fact that suicide is viewed differently today by the courts than it was in the past have any sway on the rationale of fairness?

yes.

Activity 10. 2 zurich insurance plc UK v international energy group ltd 2015.

1. What are the key aspects of mesothelioma which make an analysis of causation and remoteness difficult?

this comes from asbestos. not clear when in a long exposure the diseases was contracted.

1. What is meant by the Fairchild enclave?

the 2006 rule about evidence was inapplicable in Guernsey. The fairchild enclave was about this rule of evidence.

• Describe how the special rule applies to victims of mesothelioma?

they can sue anyone who exposed them to asbestos when it is uncertain when they caught mesothelioma.

• To what extent is ambient environmental exposure considered in the special rule?

the claimant can sue even when his exposure to asbestos was only ambient,

• Why is the shift away from the probability of exposure to significant exposure important to victims of mesothelioma?

Because it means they have a much greater chance to succeed in claims and can sue anyone who exposed them to asbestos even fleetingly.

• How did the proportionate approach to the recovery of damages operate as held in the barker case?

Barker v Corus 2006.

barker sued several people for expsoing him to asbestos which caused him meosthelioma. The House of Lords held that people had to pay compensation in proportion to the amount of asbestos they had exposed him to and the time they had exposed him do it. It is about materially increasing the risk.

• How was the barker approach reversed in the compensation act 2006?

this says that the claimant must prove he was exposed to asbestos. Anyone who exposed him to it can be liable for the Whole damage of mesothelioma.

• How did the mesothelioma act 2014 make it easier for victims to get damages?

more people are eligible for compensation. there is a regulator to help them bring cases.

1. Why has legislative reform led to a shift in the types of litigant parties disputing mesothelioma claims in court?

because it is easier to sue.

Exam q

In 2004 theo was aged 19 an apprentice plumber and a talented rugby player. He hoped to sign a contract as a prof player and eventually to return to play for England. But he had back problems and so was referred to Ursula a neurosurgeon . she told him him that it would be impossible to take part in prof rugby without sustaining serious injury and no club would sign him

#if he were to give up rugby she advised him  that he would be able to lead a life without back trouble.

But there is new surgery giving v good prospect of strengthening his back to he could play rugby.  Urusla knew there was a small risk of damaging the spine. She was critical of the new surgery but did not tell theo.

Theo had the surgery. The op was carefully executed but he suffered serious spine damage.

He was unable to work as a plumber and was in pain.

In jan 2015 theo’s mum collapsed just outside her front door on a v cold night. No help available so theo lifted his mom inside. He experienced terrible back pain. He is now permanently disabled.

Advise him on tort claim against Ursula on each of the following assumptions

1. He would probably have suffered no injury as the result of lifting his mom but for the earlier op.
2. He would probably have suffered the same injury as a result of lifting his mom even if he had not had the op.

==================================

1. In that case he can sue Ursula. She was negligent in not advising him of the risks. Ursual will argue that lifting the mother is NAI but as per the Corr case she will probably fail with that line of reasoning. A doctor has to tell a patient of possible downsides of any treatment. there might still be contributory negligence.

2. In that case Ursula is not liable. The op was not causative. It had no effect on the harm. It was novus actus interveniens.

p 161 ===================

Tort law p 161

Activity 13.1

1. Identify the legal mechanisms which can be used to hold 1 party liable for the tort of another?

vicarious liability.

respondeant superior. In relationships akin to employment there is vicarious liability.

If an employee is lent by a company the employee is the responsibility of the lending company usually.

• In which type of legal relationship does the law of vicarious liability predominantly operate?

employment. works in prisons or wherever an organisation has control over others.

• Is the employer liable for every act of the employee?

No. If employee is going against the rules then the employer is not responsible. Employer only responsible for tort committed in course of employment. Sir John Salmon test – employer responsible for acts even if he has not authorised them so long as they are modes of performing duties even if improper modes.

• What is the meaning of qui facit per alium facit per se?

who does it for others does it for himself.

• In the reedie judgment what is the reasoning for holding an employer responsible for injury which its employees have caused in the exercise of their employment?

bridge constructors negligently killed a passer by. the employers must be careful and superintend their employees.

• Identify the main argument which Williams advances as an explanation for vicarious liability?

It makes employers responsible and prudent. Employees are often people of straw.

• What does atiyah mean when he refers to the principle of loss distribution?

loss to be spread out among society or those best able to bear it.

• Which role do company shareholders play in the principle of loss distribution when companies would be uncompetitive if they charged of higher prices?

they strive to avoid losses by mitigating risks.

1. Which argument does atiyah advance which endorses the principle of vicarious liability?

Activity 13.2 

Mahmud v w m morrisson supermarkets plc 2016

1. Outline the requirement of establishing vicarious liability in tort as stated by lord Toulson

Mahmud was assaulted for racist reasons by the employee. the assailant did this at work. assault connected to his work,. this was in a field of work activity. the confrontation started in the kiosk.

there must be a tort. must be created by someone for whom another is liable. close connection needed.

• Identify the four main factors which have driven the development of the doctrine of vicarious liability

employers are responsible for the employees. there is parental liability and principals’ liability. Public bodies are not to be unduly burdened.

• Identify the factor which led to the broadening of vicarious liability in the 17^th century and the broad holt principle.

chief justice Holt said that employer is legally responsible for torts committed by employees. this is for the sake of social justice.

• With regard to the field of activities which question does the court consider and what is the court s approach when answering this question?

is the tort within the activities of employment?

E. with regard to sufficient connection which principle is applied to determine liability?

is it close to work duties?

F. why did mr khan s foul mouthed response fall within the field of activities of the job he was employed to do ?

He said it at work to a customer.

G. identify 2 reasons why the supreme court reject the argument that mr khan s movement from the counter in the retail outlet where he served customers to the petrol station forecourt in the front of the retail outlet where he did not serve customers broke the sufficient connection test?

it was work time. His confrontation had started behind the counter.

h. what was mr khan’s motivation for his conduct and to what extent was his motivation relevant to the judgment?

racialism.

1. Why does lord dyson reject the acknowledged imprecision of the close connection test as a reason to replace it with another test?

no other test is better.

• How does the court address the issue of imprecision in the close connection test?

it uses its judgment.

• In fewer than 100 words explain which development in law was central in the recent sex abuse cases such as CCWS which was not present in mahmud v wm morrison supermarkets plc?

whether the action was within the scope of duties. Patently sexual abuse is not part of educational duties when teachers are dutybound to prevent such conduct. In Mahmud’s case the employee Mr Khan was not doing something like that.