Tort Law Assessment II

Question: In the case of Wheat v E Lacon & Co Ltd [1966] A.C. 552 , the House of Lords defined the occupier of premises under the Occupiers' Liability Act 1957 as someone who:-
Choose one answer. A. Lives on the premises
B. Owns the premises
C. Has sufficient control of the premises
D. Occupies the premises
E. Don't know
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The correct answer is (c)

The word "occupier" is not defined in either the Occupiers' Liability Act 1957 nor the Occupiers' Liability Act 1984. The House of Lords in Wheat v Lacon, therefore, relied on the common law definition which requires control of the premises. As Lord Denning explains at page 577 : ' In the Occupiers' Liability Act, 1957, the word "occupier" is used in the same sense as it was used in the common law cases on occupiers' liability for dangerous premises. It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises.'

Correct
Marks for this submission: 1/1.Question 2
Marks: 1 Is the following a sufficient warning to protect a visitor to your premises?
Choose one answer. A. 'Watch out!'
B. 'Care should always be taken on the premises'
C. 'Enter at your peril'
D. 'Please use alternative door as this door is faulty'
E. Don't know
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The correct answer is (d)

Warnings are expressly mentioned in both the Occupiers' Liability Act 1957 (s2(4)(a)) and the Occupiers' Liability Act 1984 (s1(5)) as means by which an occupier can discharge his or her duty of care to the visitor or non-visitor. Under the 1957 Act, the common duty of care will only be discharged if the warning is sufficiently detailed to enable the visitor to be reasonably safe. In Roles v Nathan [1963] 1 W.L.R. 1117, Lord Denning gives an example of a footbridge over a stream which was rotten and dangerous. The occupier would be liable if he only put up a notice stating "This bridge is dangerous," where the visitor had no option but to go over the bridge. Only if there were two footbridges, one of which was rotten, and the other safe a hundred yards away, could the occupier escape liability by putting up a notice: "Do not use this footbridge. It is dangerous. There is a safe one further upstream." Such a warning is sufficient because it does enable the visitor to be reasonably safe. In the question, therefore, the incorrect answers lack sufficient detail. The visitor is not given sufficient information to enable him or her to avoid the danger. 'Please use alternative door as this door is faulty' explains the problem and gives an alternative means of entry - this would be sufficient to enable the visitor to be reasonably safe.

Correct
Marks for this submission: 1/1.Question 3
Marks: 1 Which of the following statements is correct?
Choose one answer. A. A duty is owed to trespassers if the occupier is aware of the danger (or has reasonable grounds to believe that it exists), knows (or has reasonable grounds to believe that) the trespasser is (or may come) into the vicinity of the danger, and the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection
B. The duty owed to trespassers is to avoid any wilful act undertaken with the deliberate intention of harming him or her
C. The duty owed to trespassers is one of common humanity
D. No duty of care is owed to trespassers
E. Don't know
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The correct answer is (a)

If these conditions are satisfied, section 1(4) specifies that 'Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned'.

"The duty owed to trespassers is to avoid any wilful act undertaken with the deliberate intention of harming him or her" and "The duty owed to trespassers is one of common humanity" represent the earlier common law tests which existed prior to the Act (Addie v Dumbreck [1929] A.C. 358 and BRB v Herrington [1972] A.C. 877 respectively). "No duty of care is owed to trespassers" is obviously incorrect.

Correct
Marks for this submission: 1/1.Question 4
Marks: 1 Which of the following statements is correct?
Choose one answer. A. An employer has no direct duty towards its employees in tort. Liability only exists under the law of contract
B. An employer may be both primarily and vicariously liable for injury to its employees
C. An employer may only be liable in tort towards its employees under the tort of breach of statutory duty
D. The doctrine of vicarious liability means that the employer can be liable vicariously for injury to its employees by other employees. This, together with protection under the tort of breach of statutory duty, determines when an employer will be liable towards its employees
E. Don't know
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The correct answer is (b)

There are three possible ways in which an employer may be liable towards its employees: primarily in negligence (see Wilsons and Clyde Coal Co Ltd v English [1938] A.C. 57) or for breach of statutory duty (e.g. Groves v Lord Wimborne [1898] 2 Q.B. 402), and vicariously under the doctrine of vicarious liability which renders it liable for torts committed by employees in the course of their employment.

Correct
Marks for this submission: 1/1.Question 5
Marks: 1 Section 4(1)(e) of the Consumer Protection Act 1987 states that 'In any civil proceedings by virtue of this Part against any person ("the person proceeded against") in respect of a defect in a product it shall be a defence for him to show that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control'.

This means that:

Choose one answer. A. The producer has a good defence if he is unable to discover the defect in the product
B. The producer has a good defence if a reasonable producer, possessing the scientific and technical knowledge accessible at the time the product was put into circulation, could not have detected the defect
C. The producer has a good defence if, having taken reasonable steps to investigate scientific and technical developments, he could not have detected the defect
D. The producer has a good defence if, although aware of the risk of a defect, he could not due to the state of scientific and technical knowledge at the relevant time detect the defect in the product
E. Don't know
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That's correct.

"The producer has a good defence if he is unable to discover the defect in the product" is subjective and thus incorrect. "The producer has a good defence if, although aware of the risk of a defect, he could not due to the state of scientific and technical knowledge at the relevant time detect the defect in the product" represents the position in A v National Blood Authority [2001] 3 All E.R. 289, which Burton J found not to satisfy section 4(1)(e). "The producer has a good defence if, having taken reasonable steps to investigate scientific and technical developments, he could not have detected the defect" is closer but, according to EC v United Kingdom [1997] All ER (EC) 481, is not strict enough - the producer is expected to be aware of ALL accessible knowledge which may require more than reasonable steps to acquire this knowledge.

Correct
Marks for this submission: 1/1.Question 6
Marks: 1 The primary aim of the tort of private nuisance is to:
Choose one answer. A. Prevent neighbourhood disputes
B. Protect the environment from pollution
C. Protect the occupiers' use and enjoyment of land
D. Protect the use and enjoyment of land of those with rights to land
E. Don't know
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That's correct.

Although preventing neighbourhood disputes and protecting the environment from pollution might be the result of the tort of private nuisance, its primary aim is to protect the use and enjoyment of those with rights to land: see Hunter v Canary Wharf Ltd [1997] A.C. 655. "Protect the occupiers' use and enjoyment of land" is too broad as occupiers might include persons without rights to land.

Correct
Marks for this submission: 1/1.Question 7
Marks: 1 Which of the following determine 'reasonable user' in all cases of private nuisance?
Choose one answer. A. The duration and frequency of the interference
B. The nature of the locality
C. Both the duration and frequency of the interference and the nature of the locality
D. The utility of the defendant's conduct
E. Don't know
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The correct answer is "The duration and frequency of the interference".

St Helen's Smelting Co v Tipping (1865-66) L.R. 1 Ch. App. 66 indicates that where physical damage to the property has been caused, the court will pay little attention to the nature of the locality. "The nature of the locality" cannot therefore be said to determine 'reasonable user' in ALL cases of private nuisance, rendering two of the answers above incorrect. Utility is relevant, but tends to influence the courts in exercising its equitable jurisdiction whether to grant an injunction (see Miller v Jackson [1977] Q.B. 966) and cannot therefore be said to satisfy the question.

Incorrect
Marks for this submission: 0/1.Question 8
Marks: 1 Which of the following is not a defence to the tort of private nuisance:-
Choose one answer. A. Statutory authority
B. Twenty years' prescription
C. Coming to the nuisance
D. Consent
E. Don't know
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That's correct.

Coming to the nuisance is not a defence: Bliss v Hall (1838) 4 Bing N.C. 183. "Statutory authority", "twenty years' prescription" and "consent" are all good defences to the tort of private nuisance.

Correct
Marks for this submission: 1/1.Question 9
Marks: 1 Which of the following statements is correct?
Choose one answer. A. A private individual can always bring an action for public nuisance
B. A private individual can only bring an action for public nuisance when a crime has been committed
C. A private individual can only bring an action for public nuisance with the support of the Attorney General
D. A private individual can only bring an action for public nuisance when he can show special damage
E. Don't know
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That's correct.

A private individual must show special damage i.e. damage in excess of that suffered by the public at large. If he or she cannot prove this, then the only other option is to persuade the Attorney General to bring a relator action or the local authority to bring an action under section 222 of the Local Government Act 1972.

Correct
Marks for this submission: 1/1.Question 10
Marks: 1 Under the doctrine of vicarious liability, an employer will not be liable for the torts of its employees committed in the course of his or her employment if:-

Choose one answer. A. The employee has been prohibited from acting in that way
B. The employee's act is not connected with his employment
C. The employee has harmed another employee under the doctrine of common employment
D. The employer is not insured
E. Don't know
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That's correct.

The courts will not consider the provision of insurance in their judgments.

A mere prohibition of the act in question will not necessarily take it outside the course of employment: see Rose v Plenty [1976] 1 W.L.R. 141 where the employee had been expressly instructed not to employ minors to assist on his milk round, but did so and injured his thirteen-year-old assistant. The employer was vicariously liable for his actions.

Although the doctrine of common employment did prevent vicarious liability for the tortious infliction of injury by one employee on another, this was abolished in 1948 by the Law Reform (Personal Injuries) Act 1948, section 1.

"The employee's act is not connected with his employment" therefore most accurately reflects the current legal position: see Lister v Hesley Hall Ltd [2002] 1 A.C. 215.

Correct
Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers to an extract. Please make sure you read the relevant extract before answering the questions below.

Please read the speech of Lord Bingham in the case of Transco Plc v Stockport MBC [2003] UKHL 61 [2004] 2 A.C. 1, then answer the six questions (Q11 - Q16) that follow.

Context
The case examined the scope of the rule in Rylands v Fletcher. In 1966 the claimant was granted a right to install a gas main along a stretch of disused railway line which included an embankment at Brinnington in Stockport. On a nearby site owned by the defendant local authority lay a tower block of flats which was supplied with water by means of a water pipe which the authority had constructed between the tower block and the water main. In 1972 part of the disused line, including the embankment, was purchased by the authority, with the claimant continuing to have an easement of support in respect of its gas main. In 1992, without any negligence on the part of the authority, the water pipe leading to the block of flats fractured. As a result large quantities of water escaped underground and caused the collapse of the embankment, leaving the gas main exposed and unsupported. The claimant, having been compelled to carry out emergency repair work to its gas main, brought an action to recover the cost of the remedial work on the ground, inter alia, that the authority was strictly liable for non-natural user of land under the rule in Rylands v Fletcher.
Question 11
Marks: 1 In setting out the rule in Rylands v Fletcher, Blackburn J believed that:-
Choose one answer. A. He was creating a new legal principle
B. He was responding to recent flooding disasters
C. He was developing a rule to deal with the escape of water
D. He was not laying down any new principle of law
E. Don't know
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That's correct.

In paragraph 3, Lord Bingham explains the historical background to the judgment of Blackburn J in Rylands v Fletcher and that the judge did not conceive himself to be laying down any new principle of law, but regarded the case as one of an isolated interference with the claimant's use and enjoyment of land.

Correct
Marks for this submission: 1/1.Question 12
Marks: 1 According to Lord Bingham, what is the relationship between the rule in Rylands v Fletcher and the tort of private nuisance?
Choose one answer. A. The rule in Rylands v Fletcher is a sub-set of nuisance
B. The rule in Rylands v Fletcher has been absorbed into the tort of private nuisance
C. None. The rule in Rylands v Fletcher has been absorbed into the tort of negligence
D. The rule in Rylands v Fletcher is a separate tort to that of private nuisance
E. Don't know
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That's correct.

Lord Bingham, in paragraph 9, states that the rule in Rylands v Fletcher is a sub-set of nuisance. This means that the rule can be considered a 'type' of nuisance, but not that they are necessarily exactly the same: it is therefore incorrect to say either that the rule has been subsumed into the tort of private nuisance, or that it is a separate tort from it. His Lordship refused to follow the High Court of Australia which in Burnie Port Authority v General Jones Pty Ltd (1994) 120 A.L.R. 42 treated the rule as governed by the principles of ordinary negligence: the rule therefore cannot have been subsumed into the tort of negligence. Transco does not exclude future claims under the rule in Rylands v Fletcher, although it indicates that few claims will in reality succeed.

Correct
Marks for this submission: 1/1.Question 13
Marks: 1 Which of the following is a consequence of the rule in Rylands v Fletcher being a sub-species of the tort of private nuisance:-
Choose one answer. A. Claimants can no longer recover damages for death or personal injury
B. Claimants do not now have to demonstrate an escape from one set of premises to another
C. Claimants need not now show a non-natural use of land
D. It is no longer necessary to demonstrate that the loss suffered was reasonably foreseeable
E. Don't know
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That's correct.
Lord Bingham states at paragraph 9 that claims for death or personal injury will no longer be permitted under the rule in Rylands v Fletcher, despite decisions to the contrary in the past: see Shiffmann v Order of the Hospital of St John of Jerusalem [1936] 1 All E.R. 557. The other requirements of the tort, however, remain.

Correct
Marks for this submission: 1/1.Question 14
Marks: 1 The mischief or danger test is satisfied if something is brought onto the land which:-
Choose one answer. A. Is likely to cause harm if it escapes
B. Is likely to cause serious harm if it escapes
C. Is likely to give rise to an exceptionally high risk of harm if it escapes
D. Is likely to cause a catastrophe if it escapes
E. Don't know
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That's correct.
In requiring an 'exceptionally high risk of danger or mischief' in paragraph 10, Lord Bingham is restricting the scope of the rule beyond the likelihood of harm or serious harm being caused, although not to the extent of being likely to cause a catastrophe.

Correct
Marks for this submission: 1/1.Question 15
Marks: 1 'Non-natural user' is described by Lord Bingham as:-
Choose one answer. A. Use of anything not growing naturally on the land
B. A use which is not for the general benefit of the community
C. An extraordinary and unusual use of the land
D. Unreasonable use of the land
E. Don't know
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That's correct.
Lord Bingham in paragraph 11 helpfully reviews the alternative explanations of the 'non-natural user' requirement and prefers this description.

Correct
Marks for this submission: 1/1.Question 16
Marks: 1 The piping of water to the block of flats was a natural use of land because:-
Choose one answer. A. Water occurs naturally on land
B. The piping of water to premises is a normal and routine use of the land
C. The piping of water to premises is necessary for the use of land
D. The quantity of water was far less than that contained in a reservoir
E. Don't know
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That's correct.
Lord Bingham in paragraph 13 emphasises that although water in quantity can almost always cause some damage if it escapes, the rule in Rylands v Fletcher does not cover the routine piping of a water supply from the mains to the storage tanks in a block of flats. It cannot be characterised as 'extraordinary or unusual'. Only the argument that "the piping of water to premises is a normal and routine use of the land" satisfies the test set by his Lordship in Transco.

Correct
Marks for this submission: 1/1.Application
Please answer the following four examination questions (Q17 - Q20):
Question 17
Marks: 1 Alexander decides to go for a walk in the park run by Borcestershire Council on a hot summer's day. Feeling warm, he decides to dive into a natural lake in the centre of the park despite clear signs saying "Dangerous - do not swim - you could drown." He dives into the lake and hits his head on a rock at the bottom of the lake. He suffers serious injuries. In assessing whether Borcestershire Council is liable as an occupier, should a court consider its liability:
Choose one answer. A. In negligence
B. Under the Occupiers' Liability Act 1957
C. Under the Occupiers' Liability Act 1984
D. In relation to the defence of consent
E. Don't know
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That's correct.
The case resembles that of Tomlinson v Congleton BC [2004] 1 A.C. 46, where John Tomlinson chose to dive into a lake formed from a disused quarry in a park, despite notices stating 'Dangerous water: No swimming'. The majority of the House of Lords treated him as a trespasser - therefore placing his claim under the Occupiers' Liability Act 1984. Lord Hoffmann found that in diving into the water, Mr Tomlinson crossed the line between the status of lawful visitor and that of trespasser. Lord Scott, however, disputed this. Mr Tomlinson was prohibited from swimming. At no point did he swim - his accident occurred as a result of his disastrous dive! He therefore remained a visitor. This rather technical approach was not adopted by his brethren.

Correct
Marks for this submission: 1/1.Question 18
Marks: 1 In assessing Alexander's claim in Q17 above, is the court likely to find:
Choose one answer. A. Breach of the common duty of care under the Occupiers' Liability Act 1957
B. Breach of the section 1 duty of care under the Occupiers' Liability Act 1984
C. That Alexander cannot succeed under either Occupiers' Liability Act
D. That Alexander has a good claim for negligence
E. Don't know
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That's correct.
In Tomlinson v Congleton BC [2004] 1 A.C. 46, the House of Lords was of the view that Mr Tomlinson's injury had not arisen from any danger due to the state of the premises or to things done or omitted to be done on them and so his claim fell outside both the 1984 and 1957 Act. In the words of Lord Hoffmann, 'Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises'.

Correct
Marks for this submission: 1/1.Question 19
Marks: 1 Clarence decides to buy a house in the country and finds a cottage next to a lake in a beautiful location. He is delighted and moves in immediately. When Spring arrives, however, he is disturbed by the constant buzz of jet-skis on the lake. He discovers that there is a local jet-ski club, which is about to host an international competition lasting a week. The club has received support from the local council for its activities and encourages local youths to take part in this growing sport.

Which of the following is a court most likely to find?

Choose one answer. A. That there is a nuisance, but an injunction on terms would be the correct response
B. That there is a nuisance, but damages would be an adequate remedy
C. That there is no nuisance due to the public utility of the club's activities, as recognised by the local council
D. That there is no nuisance because the club has permission from the council for its activities
E. Don't know
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The correct answer is "that there is a nuisance, but an injunction on terms would be the correct response".

The noise is likely to amount to a private nuisance. Any public utility or support from the council will not prevent a court finding a nuisance. However, the court will consider the public utility of the club's activities in assessing which remedy to give. Whilst Miller v Jackson [1977] Q.B. 966 suggests that the court would be reluctant in such circumstances to grant an injunction, the later case of Kennaway v Thompson [1981] Q.B. 88 suggests a more robust approach. In that case, the Court of Appeal was not prepared to allow the public interest to prevail over the private interest, but did not grant an absolute injunction, but chose to grant an injunction on terms which specified when motor-boat racing would be permitted on the lake. A similar result is likely to be achieved here.

Incorrect
Marks for this submission: 0/1.Question 20
Marks: 1 Dominic wishes to complain about the conduct of his neighbour, Elspeth. During a recent storm, a tree on her land was struck by lightning and set on fire. Elspeth cut down the tree which extinguished the fire and then rushed to catch a train to visit her aunt. In her absence, the wind picked up and reignited the fire which has now spread to Dominic's land and damaged his crops. Which of the following would suggest that Elspeth will be found liable in private nuisance?
Choose one answer. A. It is proved that a tree on her land caused the damage
B. It is proved that the fire caused a nuisance to Dominic's land
C. It is proved that she failed to take reasonable steps to deal with the fire
D. It is proved that she failed to take reasonable steps to deal with the fire in the light of her personal resources and ability to act
E. Don't know
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That's correct.
In Goldman v Hargrave [1967] 1 A.C. 645, Lord Wilberforce found similar conduct to amount to a continuation of the nuisance. A 'measured duty of care' would arise to deal with natural hazards which could foreseeably harm another: 'the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able-bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more' (at page 663). In Goldman, the occupier was found liable for merely cutting down a tree when he could easily have prevented any subsequent re-ignition of the fire by dowsing it with water.

Correct
Marks for this submission: 1/1.