STATUTORY LIABILITY
CONSUMER PROTECTION ACT 1987
1. s.3 of the Consumer Protection Act 1987 imposes liability for the producer, suppluer in course of business for defective goods.
2. Warning of Danger be effective as a defence if it falls within the decision in Woseley v Tambrands Ltd (008)
3. Standard Product is expected to meet the rule set in A v National Blood Authority
4. s.5(1)(e) provides a defence of development risk. The decison in A and European Union v United Kingdom make set a high standard for defendant planning to benefit from the defence provided by the section
5. s.5(1) allows for recovery for personal injury provided it is not commercial asset
6. D will be liable as a supplier if it fails within a reasonable time to identify who supplied the defective product. s.2(3)
ANIMAL ACT 1971
7. Mirvahendy v Henley (2003) Dangerous animals causing damage (A horse that bolted and caused injury). s.2(1) Animal Act 1971 and the three test in s.2(2)
8. Contributory negligence, voluntary assumption of risk and no trespass are possible defences against liability
9. Duty of care to emplouer under Employers Liability (Wilson & Clude Coal Co. v English (1983) & Employers Liability (Defective Equipment) Act 1969.
10. There would be no ls.3 of the Consumer Protection Act 1987 imposes liability for the producer, suppluer in course of business for defective goods.
11. There would be no liability if proximity is difficult to establish. Caparo v Dickman (1990)
12. s.5(2) the producer is not liable to any any losses to the product itself. Remedy could only be pursued in contract against the seller.
13. Courts prefer to apply volenti test to a rescuer. Cunning v Grang for contributory negligence
INTENTIONAL INJURIES TO THE PERSON
14. Assault, battery and false imprisonment. Torts requiring proof of direct and deliberate act on part of the defendant
15. The elements of torts of assault & battery are similar to those of the crime of assault & battery. However, the claimants myst prove on balance of probabilities whereas in crimimal law prosecution the standard of proof is beyond reasonable doubt.
16. Deliberate but indirect physical harm if wilfully done as an act calulate to cause harm to the plaintiff is known as rule in Wilkam v Downton
17. False imprisonment is the intention deprivation of the claimants freedom of movement from a particular place for any time however short, unless expressly or impliedly authorised by law. Principle in Murray v Ministry of Defence 1988). It involves complete restriction. Bird v Jones (1845).
18. Conditions onthe men egress from a premises is not false imprisonment. Train not stopping until the next station. Insistence on payment for ferry, when C decides not to continue the journey.
19. The restraints must be actual rather than potential. It must be direct (sayers) and must be an act not an omission. The awareness of the imprisonment might be immaterial.
20. Intentionally causing nervous shock rule in Wilkinson v Downtown (1867), intentional not actionale per se, actual damage must be proved.
21. Defences (1) consent (s) implied consents - stretching out arm for injection, social context (train, plan or bus passengers) Wilson v Pringe
15. The elements of torts of assault & battery are similar to those of the crime of assault & battery. However, the claimants myst prove on balance of probabilities whereas in crimimal law prosecution the standard of proof is beyond reasonable doubt.
16. Deliberate but indirect physical harm if wilfully done as an act calulate to cause harm to the plaintiff is known as rule in Wilkam v Downton
17. False imprisonment is the intention deprivation of the claimants freedom of movement from a particular place for any time however short, unless expressly or impliedly authorised by law. Principle in Murray v Ministry of Defence 1988). It involves complete restriction. Bird v Jones (1845).
18. Conditions onthe men egress from a premises is not false imprisonment. Train not stopping until the next station. Insistence on payment for ferry, when C decides not to continue the journey.
19. The restraints must be actual rather than potential. It must be direct (sayers) and must be an act not an omission. The awareness of the imprisonment might be immaterial.
20. Intentionally causing nervous shock rule in Wilkinson v Downtown (1867), intentional not actionale per se, actual damage must be proved.
21. Defences (1) consent (s) implied consents - stretching out arm for injection, social context (train, plan or bus passengers) Wilson v Pringe
15. The elements of torts of assault & battery are similar to those of the crime of assault & battery. However, the claimants myst prove on balance of probabilities whereas in crimimal law prosecution the standard of proof is beyond reasonable doubt.
16. Deliberate but indirect physical harm if wilfully done as an act calulate to cause harm to the plaintiff is known as rule in Wilkam v Downton
17. False imprisonment is the intention deprivation of the claimants freedom of movement from a particular place for any time however short, unless expressly or impliedly authorised by law. Principle in Murray v Ministry of Defence 1988). It involves complete restriction. Bird v Jones (1845).
18. Conditions onthe men egress from a premises is not false imprisonment. Train not stopping until the next station. Insistence on payment for ferry, when C decides not to continue the journey.
19. The restraints must be actual rather than potential. It must be direct (sayers) and must be an act not an omission. The awareness of the imprisonment might be immaterial.
20. Intentionally causing nervous shock rule in Wilkinson v Downtown (1867), intentional not actionale per se, actual damage must be proved.
21. Defences (1) consent (s) implied consents - stretching out arm for injection, social context (train, plan or bus passengers) Wilson v Pringe
22. Consent obtained by fraud or duress will be vitiated (R v Williams[1923]). However, consent will not be vitiated by claimant's age provided the claimant understands the nature of the act (Gillick v West Norfolk Health Authorityu (1986). Consent may be viatiated by public policy (R v Brownn (1994); Lane v Holloway (1968)
23. Self-Defence (subjective belief that force is reasonable and necessary); necessity (choice between lesser evil)
INTERFERENCE WITH ECONOMIC INTEREST
24. It is difficult to recover for economic loss brought about negligently
25. Tort of deceit - loss resulting from deliberate falsehood (Derry ve Peek (1989) Limited application of the tort of deceit because it is very difficult to prove. The elements of the tort are:
a) False statement of fact (Edginton v Fitzmaurice (1889). D must know that thje statement is false or be reckless )Derry ve Peek (1989) D must have the intention. The law allows for negligent misrepresentation , which is easier to prove than dishonesty, but if this is proven, the claimant can recover not not merely foreseeable losses, but all losses arising directly from the mistatement (Smith Alan Court Securities Ltd v Scrimageour Vicker (Asset Management) Ltd.
26. Economic tort - general consideration; intention, motive, right against interference, subject matter.
27. Business competition is regulated by Competition Law and employment dispute by Labour Law.
28. The starting point is Fundamental Allen v Flood (1898) AC D Told X to terminate the contract with C or face the consequence of D going on strike if the contract is not terminated.
29. In Allen v Flood. All the contracts were terminable at very short notices. so the dismissal of the shipwrights was not a breach of thr contract of employment and if the boildermaker had walked out they would not have broken the contract with X. The House of Lords held that no tort had been committeed, the defendant were merely promoting their self-interest.
30. Inducing breach of contract. Recognised in Lumley v Gye (1853) and confirmed by Allen v Flood (1898). Interference with others genuine rights. C will have right of action against X for breach of contract and D for tort of inducing the breach. It is not a tort for D to persuade X not to enter into a contrac with C.
31. J. T. Stratford & Son Ltd v Lindley. D persuades Y to break contract with X so that X in turn will break contract with C.
32. Where D directly approached X, the means uses are not in themself unlawful. The illegality lies in the consequence of the broken contract. D may however be liable even for getting X indirectly bu in that case the means of getting X must in them be illegage. Separate inducement of breach by the fourth party.
INTIMIDATION
33. No intimidation with genuine pre-existing rights but affected by some illegal action or threat usually by 3r party.
CONSPIRACY
34. Pure Purpose; Two or more people conspire with the ultimate motive or purpose of damaging the claimant. Not necessarily actionable if done by one person (Loniho Ltd v Shell Petroleum Co. Ltd (1982) Established in Quinn v Leather but the scope was limited in Sovrell v Smith (1925); Crofta Han Woven Harris Tweed v Veith (1942) Unlawful means conspiracy.
35. Determine if there is a contract and aim to break the contract or merely persuaded the college not to enter into the contract. Is there any justification (desire to prevent unacceptable, illegal or indecent conduct)
THE LAW OF NUISANCE AND THE RULE IN RYLANDS V FLETCHER
36. Private nuisance and the associated rule in Rylands v Fletcher are confined to interference with your rights in land. Public nuisance has a wider application. It is limited however, to claimants who have experienced special damage above and beyond that suffered by the rest of the public.
PRIVATE, PUBLIC AND STATUTORY NUISANCES
37. Private nuisance - physical injury to land (flooding); substantially interference with the enjoyment of land (for example smells, dusts and noise; encroachement on a neighbours land for example by spreading roots of overhanging branches, which is of minor significance.
38. Only those with rights to land or exclusive possession will be ale to sue (Maloney v Laskey (1907) HL . Is exclusion of family members living in a house consistent with the Art. 8 of ECoHR. Rhovasander v Bush (1993) (daughter can sue, but following Hunter v Canary Wharf (1951)there must be rights or exclusive possession. Protection from Harrassment Act (1997) provides remedies for such harrassment.
39. The test is of reasonable use i.e. use land as legally permitted against the right of others to quiet enjoyment of their land. It is not a test of reasonableness Care Repair v London Tramway Co (1893). Reasonable common sense ordinary use, Southware LBC v Mills; Baxter v Camden LBC (2001)
40. Court will likely find nuisance if there is (1) physical damage (personal discomfort will be susbtantial to merit consideraion (Walter v Self (1851) and St. Halless Smelting Co. v Tipping (1865)(2) nature of locality (industrial v residential area);(3) Duration and frequencies; (4) utility of D’s conduct (effect on C rather than commits) Courts will not interfere in case of abnormal sensitivity (Robinson v Kilvert (1889); Heath v Mayor or Brighton (1908) but there could be claim if the heat could have affected ordinary paper McKinnon Industries Ltd v Walker (1951); (5) Malice (the intention of D to cause nuisance (Christy v Davey (1893)
41. Who can sue? Creator of nuisance, employer or landlord, the local council, etc. Employer (Malanta v National Provincial Bank (1936) and Bowen v Peace; (2) An occupier who has adopted continued noise (Sedleigh-Denfield v O’Gallghan). The ability of D to remove the nuisance will be taken into consideration by the courts in arriving at a decision.
42. In the absence of express provision in the case of statutory authority the court will interpret the Act to ascertain whether authorization is implied as a true consequence of acting within the scope of the Act (Allen v Gulf Oil Refining Ltd (1981).
43. Twenty year provision – This provides a defense where the nuisance has interfered with C’s interest in land for more than 20 years – Sturgs v Bridsman (1879).
44. Defences Rejected by Courts: - Coming to nuisance (Bliss v Hall (1833); Miller v Jackson (1977); existence of nuisance before the arrival of the claimant (2) Nuisance is a social utility (Miller v Jackson); (3) that D is one of the many causing the nuisance (Lambton v Mellish (1894)
REMEDIES
45. Injunctions (discretions remedy as the claimant has no right to an injunction). Court may decides damages in-lieu of injunction (s.50 of Supreme Court Act 1981) (2) Abatement (self-help, cutting root or branches of tree) this remedy is of limited utility (Delaware Mansions Ltd v Westminster City Council (2001); (3) Damages (Hunter v Canary Wharf (1997); Householder may obtain damages for interference with his interest in land, be it physical or non physical, but not for personal injury but damages for personal injury available under public nuisance. Private nuisance is a tort to land
THE RULE IN RYLANDS V FLETCHER
46. Rylands v Fletcher – D brings to his land for own purpose something likely to do mischief; which excapes (Read v J. Lyons & Co. Ltd (1947); due to non-natural uses; and which cause foreseeable harm. D is prima facie answerable for all damages which is the natural consequence of its escape (Blackborn J.)
47. Cambridge Wate Co. v Estern Counties Leather Plc (1994) HL only foreseeable harm would be recoverable. In Transco Plc v Stockpoint MBC HL confined that the rule was in fact a subset of private nuisance and confine it to exceptional circumstance, extra-ordinary circumstance and unusual use of land.
48. Who can Sue? Claimant must have some rights to land (Transco) overruling decision in Shiffman v Order of the Hospital of St. John of Jerusalem (1936) and Perry v Kendricks Transport Ltd (1956) which permitted non-occupiers of land to sue for damages..
DEFENCES
49. Ponting v Noakes (1894) and Law Reform (Contributory Negligence) Act 1945 liability will be reduced or eliminated if escape is due partly or wholly to claimant’s fault.
50. Unforeseeable act of a stranger. Unforeseeable (Greenock Corp v Caledonian Rly (1917) Act done by 3rd party over whom the defendant has no control Box v Jubb (1879) Rickards v Lothian (1913) and Ribee v Norrie (2001); Act of God(due solely to natural causes where no human foresight could guard against such occurrence) Nichols v Marland (1876) and Greenock Corp v Caledonian Rly (1917); Statutory authority (Green v Chelse Waterworks Co, (1894) and consent, implied or express ed e.g. watertank maintained for a block of flats provide the escape occurs without negligence Kiddle v City Business Properties Ltd (1942)
DAMAGES
51. Injunctions (discretions remedy as the claimant has no right to an injunction). Court may decides damages in-lieu of injunction (s.50 of Supreme Court Act 1981) (2) Abatement (self-help, cutting root or branches of tree) this remedy is of limited utility (Delaware Mansions Ltd v Westminster City Council (2001); (3) Damages (Hunter v Canary Wharf (1997); Householder may obtain damages for interference with his interest in land, be it physical or non physical, but not for personal injury but damages for personal injury available under public nuisance. Private nuisance is a tort to land
51. 11.6 Rules in Rylands v Fletcher there is an escape but the mischief, non-natural use of shed are difficult to satisfy (Transco), any person injury is unlikely to be recoverable. A storm could be classified as act of God and other defences do not apply. He may recover damages for his flowers if he can show that the damage was reasonably foreseable
PUBLIC NUISANCE
52. Public nuisance arises when the interference does not affect the claimant’s land but the public as a whole and the claimant has suffered ‘special damage’. The claim by the Claimant is a question of fact (AG v P.Y.A. Quarries Ltd (1957).
53. The claimant must prove special damage in excess of that suffered by the class which must be direct and substantial and covers personal injury, property damage, loss of custom or business and delay and inconvenience. If individual cannot claim prove damage, the only other basis for claim is in the name of AG or by local authority under s.222 of the Local Authority Act 1972 (Stoke-on-Trent City Council v B & Q (Retail) Ltd (1984).
THE RELEVANCE OF HUMAN RIGHTS ACT 1998
54. The Act may have some impact on tort of private nuisance and the rule in Rylands v Fletcher (1) who can sue (2) increasing the landlord's ability for the actions of tenants. It is a question of compatibility with Art. 8 (right to private and family life and (2) Art. 1 of Protocol 1 (Right to peaceful enjoyment of one's possession) The ECtHR decisions in Hatton v United Kingdom (2002) which favoured intervention under Art. 8 has been overturned: (2003) 37 EHRR 28
55. Who can sue? It's been suggested that limiting who can sue to those with rights to land is contrary to Art. 8 of the European Convention on Human Rights McKenna v British Alumiunm Ltd weak authority and the restrictive approach taken by the HL in Marciv v Thames Water Utilities Ltd (2003)
56. Landlord's liability for his/her Tenants: Could the claimant in Hussain and Mowan be able to invoke Art. 8 against Local Authority to force them their tenants creating nuisance. Provide the LAs adopts decision making process which satisfies proportionality and does not impose a disporportionate burden on the person concerned, it may escape liability. Art. 8 a developing area.
57. Common errors in dealing with nuisacne include failing to appreciate the potential claim in a public nuisance and applying the rule in Rylands v Fletcher indiscriminately. In relation to private nuisance, it is important to check that the interference is with an interest in land and claimant has such interest and may restrict damages.
54. The Act may have some impact on tort of private nuisance and the rule in Rylands v Fletcher (1) who can sue (2) increasing the landlord's ability for the actions of tenants. It is a question of compatibility with Art. 8 (right to private and family life and (2) Art. 1 of Protocol 1 (Right to peaceful enjoyment of one's possession) The ECtHR decisions in Hatton v United Kingdom (2002) which favoured intervention under Art. 8 has been overturned: (2003) 37 EHRR 28
55. Who can sue? It's been suggested that limiting who can sue to those with rights to land is contrary to Art. 8 of the European Convention on Human Rights McKenna v British Alumiunm Ltd weak authority and the restrictive approach taken by the HL in Marciv v Thames Water Utilities Ltd (2003)
56. Landlord's liability for his/her Tenants: Could the claimant in Hussain and Mowan be able to invoke Art. 8 against Local Authority to force them their tenants creating nuisance. Provide the LAs adopts decision making process which satisfies proportionality and does not impose a disporportionate burden on the person concerned, it may escape liability. Art. 8 a developing area.
57. Common errors in dealing with nuisacne include failing to appreciate the potential claim in a public nuisance and applying the rule in Rylands v Fletcher indiscriminately. In relation to private nuisance, it is important to check that the interference is with an interest in land and claimant has such interest and may restrict damages.
58. If the claimant does not have an interest in land, it will also exclude a claim under Rylands v Fletcher, but there could be alternative claim in public nuisance (or even negligence) The important questions are (1) Is there a cause of action? On what basis? Do you think a court will find liability? Are there defences? What are the remedies?
59. Landlord could be liable for the activities of his tenants if he is aware of the potential activity (Tetly v Chitty (1986). Would it lead to property damage? Only if this could be established would Ben be liable for the activities of Charles and his visitors. Charles may incur liability as occupier of the land under Sedleight-Denfield, where the occupier adopts or continue nuisance, he will be liable. Defence, has Charles taken reasonable test to abate the nuisance?
60. The noise disturbs the worshippers (who have no right to sue), but are they extra-sensitive (Heath v Mayor of Brighton (1908). Damage to property will however be regarded as nuisance (Halems Smelting Co. v Tipping (1865). Traffic jams in the village. Arabella needs to show special damage. Four requiremens in Cambrdige water needs to be satisfied in order to apply the Rule in Rylands v Fletcher.
61. REMEDIES - Arabella would like an injunction to stop the property damage and damages for the barbecue explosion. She would not obtain any damage for personal injury under private nuisance or the rule in Rylands v Fletcher. It seem unlikely that social utility would prevent the Court from awarding an injunction (contrast Miller v Jackson.)
DEFAMATION
62. Defamation as tort seeks to protect the claimant against damage to his or her reputation. Divided into Slander (Temporary) Libel (permanent). Libel is actionable per se. The claimant must prove loss and the loss must not be too remote (Lynch v Knight). Libel unlike slander is also a crime but few prosecutions are made.
63. Difficulties - (1) Distinction between libel and slander is unclear Youssoupoff v MGM Pictures Ltd (1934). When a speech is recording is it permanent? Performance of a play on stage and broadcasting on television and radio are libel. s.4(1) Theatre Act 1968 and Broadcast Act 1990
64. As a general rule special damage must be proved for slander and there are four forms of slander which are are actionable per se and these are (1) imputation of a criminal offence punishable by imprisonment (2) imputation of contagious disease (leprocy, plague) (3) imputation of unchastity or adultery by female s.1 of Slander of Women Act (1891); (4) imputation of unfitness or incompetence s.(2) Defamation Act (1952) the last one arises most frequently and needs special attention.
65. The case usually be heard by a Judge (question of law and nature of damage) and Jury (matters of fact and level of damage)
66. Who can sue?. (Any human can sue) but the claim does not survive death s.1(1) Law Reform (Miscellaneous Provisions) Act 1934; companies but not governmental bodies (Derbyshashire CC v Times Newspaper Ltd (1993) or Political Parties (Goldsmith v Boyrich (1998) .
67. The Claimant must prove that the statement is defamatory (Sim v Sretch (1936); Youssoupoff v MGM Pictures Ltd (1934). The standard is objective (Byrne v Dean (1937)provides a good example of the application of the test in practice. the court will ignore mere abuse (Berkoff v Burchill (1998)
68. INNUENDO True (hidden in the absence of special fact) Tolley v J. S. Fry & Son. Ltd (Amateur golfer whose carricature was used in an advert without his knowledge or consent this portraying his as a professional contrary to his claim as an amateur thus casting aspersion that his statement are not true. Cassidy v Daily Mirror Newspapers Ltd (1929). False innuendo - where a reasonable person would infor from the natural and ordinary meaning of the word (Lewis v Daily Telegraph Ltd (1964). The statement must be considered in context and not a particular statement - Charlesfour News Group Newspaper Ltd (1995).
69. Does the statement refers to the claimant? Claimant will only be able to bring an action if he can show that the word refer to him and prove that ordinary reasonable person with knowledge of all circumtances would recognised the person referred to as the claimant. (Morgan v Oldhams Press Ltd). It is irrelevant that the defendant did not intend to defame the claimant (Hulton & Co. v Jones (1910); Newstead v London Express Newspaper Ltd (1940)
70. Group Defamation: Criticism of a group will not support action for defamation unless it can be proven that the claim is easily recognised as the target. Knuppfer v London Express Newspapers Ltd.
71. Statements will only harm reputation if third parties are aware of them. If it is reasobably foreseeable that statement will come to the knowledge of a third party publication will exist - Theaker v Richardson (1962) a defamatory letter sent to a wife but read by her husband. Contrast with (Huth v Huth (1915).
72. Repeating a defamatory statement will be regardes as further publication, le and D may be found liable if (1) authorised or requested publication (intended that the statements should be repeated (3) informed a person under a moral duty to republish the statement.
DEFENCES
73. Justification or Truth: D must show that defamatory statement are substantially true - Alexander v North Eastern Railway Co. (1865); s.5 Defamation Act 1952. The only exception is s.5 of the Rehabilitation of Offenders Act 1974.
74. Fair Comment:. To provide defence the statement must be in public interest, a comment on true facts and honest and fair. Public interest does not translate in any topic which the public is interested in but matters in which people are legitimately interest or concerned London Artists v Littler (1969). The statement muust be a comment on a set of fact Kemsley v Foot (1952; and recently the statement could be isolated Telnikoff v Maturesvitch (1992; s.6 of Defamation Act 1952
75. Comments must be fair and honest: The courts use objective test; honestly held by the person expressing it Reynolds v Times Newspapers (2001) and Albert Cheng v Tse Wai Chun (2001; Branson v Bower (No. 2) (2002)
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