Law of Tort and Easement for LLB 1 Shart Q and Short Answer Part 5

11. Torts Relating to Land

1. Name three statutes which add to the forms of trespass available at common law.

·         The Anti-Social Behaviour Act 2003

·         The Serious Organised Crime and Police Act 2005

·         The Criminal Law Act 1977

·         The Public Order Act 1986 and the Criminal Justice and Public Order Act 1994

2. The tort of trespass is actionable per se. What does this mean?

It means the tort is actionable without the claimant having to prove actionable damage.

3. What are the two main differences between the actions of trespass and nuisance?

Trespass is actionable per se, whilst nuisance requires damage to be proven. Trespass concerns direct interference with the claimant's land, whereas nuisance is concerned with indirect interferences.

4. What sort of interference must the claimant in a nuisance action prove, in relation to his land, in order to succeed?

The interference with his land must have been unreasonable.

5. What is the primary distinction between private nuisance and public nuisance?

Private nuisance is concerned with interferences with private land and public nuisance with interferences with public land.

6. In an action for public nuisance, what must a claimant have suffered in order to succeed?

Special damage

7. What must a claimant have in order to bring a successful claim in private nuisance?

A sufficient interest in the land concerned.

8. What sort of damage is not recoverable in private nuisance?

Personal Injury

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