Law of Tort and Easement for LLB 1 Shart Q and Short Answer Part 4

6. Miscellaneous Situations

1. What is the legally significant difference between a large group of persons and an indeterminate group of persons?

An indeterminate group is one whose membership cannot be foreseen.

2. Which case formed the principle that the police owe no duty of care to individual members of the public?

3. What alternative means of recovery is open to victims of torts which are also crimes?

Compensation from the Criminal Injuries Compensation Board

4. What was the public policy decision made in McKay v Essex AHA?

That someone cannot claim in tort for having been born (a wrongful life claim).

5. Is there ever a duty to rescue in the tort of negligence?

Only where party has made some undertaking to another, or where the law imposes such a duty (such as parents to their children).

7. Breach of Duty: The Standard of Care

1. What is the name of the objective test applied by the courts to establish whether or not a defendant has breached his duty of care?

The “reasonable man” test

2. What is important about the fact that this test is objective rather than subjective?

An objective test does not take the characteristics of the particular defendant into account; he is held to an externally defined standard.

3. What is the concept, used to describe a defendant's conduct, which is often considered by the courts to balance out the taking of risks by that defendant?

Utility

4. Which partial defence to a negligence action is governed by statute enacted by Parliament in 1945?

Contributory Negligence — Law Reform (Contributory Negligence) Act

5. Which test says that “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”?

The Bolam test, from Bolam v Friern HMC

6. Is it true that the Bolam test applies only to professional doctors?

No, it is a test for professional individuals in general.

7. Which case restricted the effects of the Bolam test?

Bolitho v City & Hackney HA

8. Which technical term means “the facts speak for themselves”?

res ipsa loquitur

9. What was the ratio of Nettleship v Weston?

That trainees and learners are subject to the same standards of care as those experienced in the activity; the objective test.

8. Causation and Remoteness of Damage

1. What is the basic test for factual causation in the tort of negligence?

2. What is the standard of proof in the context of causation?

3. What is the remarkable effect of the decision in Chester v Afshar?

4. What were the defendants held liable for in Fairchild v Glenhaven Funeral Services?

Materially increasing the risk that the claimants would develop mesothelioma.

5. What is a novus actus interveniens?

An act which breaks the chain of causation between the defendant's negligent act and the claimant's ultimate damage.

6. Why could the ‘but for’ test not be applied in Fairchild and Barker?

There was an evidentiary gap in that the court did not have enough information about the way in which the disease was contracted.

7. Is it true that the cases of Hotson v East Berkshire HA and Gregg v Scottestablish that loss of a chance is never recoverable in the tort of negligence?

No, loss of a chance is only irrecoverable in the context of personal injury and medical negligence.

8. What is it that must be foreseeable under the rule in The Wagon Mound (No. 1)?

The type or nature of the ultimate damage to the claimant, i.e. not its extent or how it happened.

9. What is the name of the rule which says that a tortfeasor must “take his victim as he finds him”?

The thin skull or eggshell skull principle.

10. Which statute has partially reversed the effects of the House of Lords' decision in Barker v Corus?

The Compensation Act 2006 (s.3)

9. Breach of Statutory Duty

1. What is the name of the Law Commission Report on this area of the law?

Accidents at Work

2. To whom must the statutory duty be owed for a claim of this nature to succeed?

The individual claimant

3. What is the technical term for the defence based on a claimant's voluntarily placing himself at risk of harm?

volenti non fit injuria

4. In which case was the defendant held vicariously liable for breach of statutory duty owed under the Protection from Harassment Act 1997 s.3 by one of its employees?

Majrowski v Guy's and St Thomas' NHS Trust

5. Which statutory provision was challenged in Davies v Health and Safety Executive?

Section 40 of the Health and Safety at Work Act 1974

10. Occupiers' Liability

1. What is the primary difference between the application of the Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984?

The 1957 Act applies to lawful visitors and the 1984 Act to those other than visitors.

2. Is it true that ‘visitors’ for the purposes of the Occupiers' Liability Act 1957 includes users of public or private rights of way?

No

3. Which statutory provision deals with the specific nature of the duty owed by occupiers to children?

Section 2 (3) (a) of the Occupiers' Liability Act 1957

4. What is the name of the principle applied to situations in which occupiers have been deemed to allow children to be encouraged on to their land by a particular feature of it?

The allurement principle

5. Which statute, usually of more relevance to the law of contract, can affect an occupier's liability to affect his own liability?

The Unfair Contract Terms Act 1977

6. Is it true that the provisions of UCTA apply only to business occupiers?

Yes — private occupiers will be governed by the common law relating to such terms.

7. What, for these purposes, is a ‘trespasser’?

A person whose presence on land is unknown to the occupier or, if known, is objected to by the occupier in some practical way.

8. What is the name of the statute enacted in order to balance public access to common countryside with the rights of landowners?

9. What was the significance of the decision in Gwilliam v West Hertfordshire Hospital NHS Trust?

That occupiers have a duty to inquire as to the insured status of independent contractors on their land.