Saturday, February 23, 2013

Compleat Solved Trots Paper 5 LLB Part 3 What is meant in the context of private nuisance by the concept of hypersensitivity


9.     What is meant, in the context of private nuisance, by the concept of hypersensitivity?

A claimant will be deemed hypersensitive if his land is affected only because of a particular vulnerability; where, in other words, a reasonably robust user of land would not be affected.
10. How is the notion of foreseeability relevant to an action in Rylands v Fletcher?

The ultimate damage must have been reasonably foreseeable by the defendant for the claimant to be able to recover for it. The escape need not have been foreseeable. Once that damage is deemed to be foreseeable, no amount of care on the part of the defendant will prevent liability if that damage ensues.
12. Liability for Animals
1.     Who, in this context, is a ‘keeper’?

The owner or the animal or, if the owner is under 16, the head of the household. If the animal is a stray, the keeper will be deemed to be the previous keeper.
2.     What is the nature of the liability in this context?

The liability is strict.
3.     What amounts to a ‘dangerous species’?

One which is not commonly domesticated in the British Isles and which, when fully grown, is likely to cause severe damage.
4.     In terms of a keeper knowing about an animal's unusual characteristics, is constructive knowledge sufficient?

No, it must be actual knowledge.
5.     Can the owner of a parrot which makes defamatory statements be liable for those statements?

Yes
13. Trespass to the Person
1.     What is an assault?

Putting someone in fear of an immediate battery.
2.     What is a battery?

The application of direct physical force to the victim.
3.     What was the definition of false imprisonment given in Collins v Wilcock?

“The unlawful imposition of restraint on another”
4.     What was the ratio of Bird v Jones?

That, for there to be a false imprisonment, the claimant must have had no reasonable means of escape.
5.     In order for behaviour to amount to Harassment under the Protection from Harassment Act 1997, what must the defendant's actions have amounted to?

A course of conduct.
6.     What are the defences to an action in trespass to the person?

Necessity, self-defence, consent, statutory authority and reasonable chastisement.
7.     True or False: the claimant need not have known that he was imprisoned in order to be successful in a claim for false imprisonment?

True
14. Employers Liability
1.     What is the technical term for a duty which an employer cannot assign to anyone else?

A non-delegable duty.
2.     True or False: an employer can be liable for the torts of an independent contractor whom he has employed?

3.     What is an ultra-hazardous activity?

An activity which is inherently dangerous; responsibility for which cannot be delegated.
4.     In which case was an employer held liable for the injury caused to one of his employees by violent customers, when he knew of the risks and the fact that other staff had been assaulted on previous occasions?

Rahman v Arearose
5.     There is a mutual duty between employer and employee implied into every contract of employment. What is it?

A mutual duty of trust and confidence.
6.     Name three of the recent cases concerning employers' liability for occupational stress.

·         Sutherland v Hatton
·         Barber v Somerset
·         Hartman v south Essex Community NHS Trust
·         Eastwood v Magnex Electric plc
15. Product Liability
1.     Why has the regime of product liability developed outside of the realm of contract law?

Because contract remedies are limited to the parties to the contract.
2.     What is the main statue governing this area?

Consumer Protection Act 1987
3.     What is the term used to describe liability under which a claimant can sue all or any of the potential defendants, leaving those defendants to sue one another for their respective contributions?

Joint and several liability
4.     How is a defect in goods defined?

A defective good is one whose safety is not such as “persons generally are entitled to expect, taking into account all the circumstances”.
5.     On whom does the burden of proof lie?

6.     The claimant What is the name of the defence based on the state of scientific or specialist knowledge at the time the product was supplied?

The development risks defence.
7.     What is the limitation period for actions of product liability?

10 years from the date of supply.
16. Vicarious Liability
1.     What is the principal limiting factor on situations in which employers can be vicariously liable for torts committed by their employees?

The tort must have been committed during the course of the employee's employment.
2.     What is the principle, under which a term is implied into contracts of employment that an employee will exercise all reasonable care and skill during the course of his employment?

The Lister v Romford Ice Principle
3.     When might the court be concerned with who owns the tools used by a particular individual?

It is one of the ways in which the court might differentiate between employees and independent contractors.
4.     Which two questions were identified as important in Lister v Hesley Hallfor establishing vicarious liability?

1.    Was the person who committed the tort an employee?
2.    Was the employee acting in the course of employment when the relevant tort was committed?
5.     What is one of the main practical problems with the control test?

In practical terms, many persons who are technically employees (such as doctors) are not in any real sense ‘controlled’ by their employer.
17. Trespass to Goods
1.     What is a trespass to goods?

A “direct, immediate interference with personal property belonging to another person”.
2.     What is a reversionary interest?

This is the interest retained by someone who does not currently have possession of them, or the right to immediate possession, but to whom such rights will revert when the current possessor's interest expires.
3.     What is a conversion?

A “dealing with goods in a manner inconsistent with the rights of the true owner”.
4.     What is the primary statute of relevance in this area?

The Torts (Interference with Goods) Act 1977
5.     Who can sue in conversion?

Only the party currently in possession of the goods, or with the right to immediate possession, (even if this is not the owner).
6.     What might be considered remarkable about the remedies available for conversion?

There is no automatic legal right for the claimant to have the goods returned to him; the general remedy is the market value of the goods. Once this has been paid, the claimant's title is extinguished, effectively facilitating a forced judicial sale of the goods in question.
7.     What happened to the old action of detinue?

It was abolished in name by the Torts (Interference with Goods) Act 1977, but in substance is now covered by conversion.
8.     True or False: contributory negligence is no defence to the tort of conversion?

True

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