LAW OF TORT

1. LAW OF TORT NEGLIGENCE

2. PRESS RELEASESFA • Over £400m Annual Pesonal Injury Costs • Rampant Compo Culture. • 50% of Small Companies face personal injuries claims.

3. NEGLIGENCE Blyth v. Birmingham Waterworks An omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.

4. DUTY OF CARE • Donoghue v. Stevenson (1932) • Must be a duty to take care towards the plaintiff • Must be a breach of that duty • This must lead to injury • Breach of duty was the proximate cause of the injury

5. NEIGHBOUR PRINCIPLE You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Neighbours are people so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

6. EXAMPLE • Denis Ward v. McMaster (1983) • Plaintiff bought a house from a builder which turned out to be so bad the house had to be abandoned. • The builder had occupied the house for 3 years. • The plaintiff had purchased the house with a loan from the housing authority. • The housing authority had arranged for an inspection prior to purchase through an auctioneer. • Sued • Housing authority; • Seller as builder and owner: • Auctioneer.

7. RESULT • Succeeded against seller as builder who owed a duty of care to the purchaser. • Test: • Reasonable foresight

8. Joseph Muldoon v. Ireland and the Attorney General (1987) Plaintiff was a prisoner who was attacked by another prisoner. Their were 40 or 50 other prisoners about. The attack was one of mistaken identity. The weapon used was a blade and the wound needed 22 stitches. There were 17 officers on duty. System was to search all prisoners on entry. In the prison workshop all items were checked and prisoners given a rub down check. The prisoners were not checked for recreation. Sued the Attorney General for personal injury.

9. HELD 1. The prison authority were required to take all reasonable steps and reasonable care not to expose the prisoners to risk of damage or injury - there was no guarantee. 2. The prison officers were not negligent in relation to supervision. 3. The authority could not be expected to take more steps than those they had taken.

10. WHO IS THY NEIGHBOUR? • Those persons likely to be affected by want of care. • Anyone so closely and directly affected by an act or omission in that the actor should reasonably have them in mind. • Bourhill v. Young

11. STANDARD OF CARE • A person is to act with the same care that an ordinary and reasonable man would have in the circumstances. • If acting in a skilled capacity that person must exercise knowledge, skill and care which could be reasonably expected from the ordinary skilled person.

12. EXAMPLES • McComsky v. McDermot (1973) • Plaintiff was a navigator in a motor car rally who was injured when the driver of the car overturned the vehicle by driving into a ditch to avoid an obstacle. His speed was 35 mph through winding mountain roads. • Held - Driver owes a duty of care to the navigator to act as a reasonably competent rally driver. • The driver had fulfilled his duty and therefore was not negligent.

13. WHO IS LIABLE • Only liable for one’s own wrongdoing • Exceptions: • Employer is vicariously liable for the actions of his or her servant. • Who is a servant: • Ready-Mixed Concrete v. Minister of Pensions (1968) 1 AER 433 • The servant agrees to provide work for a wage. • He agrees to be the subject to the control of the master. • All other conditions of the contract are consistent • Partners • Diplomatic immunity • The State (Byrne v. Ireland and the A-G)

14. CONTRIBUTORY NEGLIGENCE Originally a complete defence to any claim for damages. 1% negligence on the part of the plaintiff would have defeated the action. Civil Liability Act 1961 If a plaintiff is liable damages will be reduced by the proportion of negligence which the court considers to be applicable. e.g. Damages 10,000. Plaintiff held to be 25% negligent . Damages reduced to £7500.

15. THIRD PARTY Third parties may also be held to be liable. Thus a third party can be brought into the action and found to be partly responsible for the plaintiffs damages. Parties to the action are jointly and severally liable. e.g. Three parties to the action A,B and C. Damages are £10,000. A is 20% liable; B 45% and C 35%. Thus A pays £2000, B 4500 and C £3500.

16. EMPLOYERS LIABILITY • Employer owes duty of care to employees. • Provide competent staff. • Adequate plant and equipment. • Safe place of work. • Safe system of working.

17. OCCUPIERS LIABILITY • Occupiers Liability Act 1995. • Changes law radically. • Different standards of care based on the status of the injured party. • Can modify liability by contract or notice • Must be reasonable • Must be brought to attention of entrant • Prominently displayed at entrance

18. ENTRANTS • Visitor • Invited or given permission to be on premises. • Entrant of right. • Owes common duty of care. • Recreational visitor. • On the property engaging in recreational pursuits with or without permission of occupier. No charge other than a reasonable one for parking. • Duty not to injure intentionally or recklessly. • Trespasser • Duty same as recreational visitor.

19. ANIMALS • Scienter rule • Owners of wild animals keep them at their peril • Strict liability • Tame animals must show that the animal has a mischievous propensity. Horse is considered a tame animal at law • Walker v. Hall – Horse trainer held liable for damages caused by animals vicious tendencies • There must be bad blood. Foal frolicking not good enough for liability • Possession or control of animal rather than ownership incurs liability

20. ANIMALS – CATTLE TRESPASS • Owner or controller of horses that stray on to another’s property incurs strict liability • Includes straying onto the road or breaking through fences onto another’s property • Does not apply when animals being ridden or driven. In this case negligence applies • Liability dependes on who controls the animals

21. ANIMALS – NUISANCE • A person keeps or manages animals in such a way as to interfere with another landowner’s reasonable use or enjoyment of land this is nuisance • Unreasonable number of horses in built up area

22. ANIMALS - TRESPASS • Intentional or negligent driving of animals on to another’s land and causes damages. • Leads to compensation • Animals on the highway – duty of care to other roadusers if deliberately brought on the highway. • At common law no liability if animals strayed onto the road in rural areas unless in sufficient numbers to cause an obstruction

23. ANIMALS ACT 1985 • This abolishes straying rule and imposes normal duty of care. • Control is important. • If fences not properly maintained and animals stray onto highway and cause accident this breach of duty of care. • This does not apply if the area in which the animals strayed did not normally have fencing.

24. CONTROL OF HORSES ACT 1996 • Provides for criminal offence • Aim is to provide for control of horses and make provision for licensing them in areas where they can be a danger. • It is a crime if the owner, keeper or person in charge or control of a horse wilfully or recklessly permits the horse to pose a danger to a person or property or to cause injury to a person or damage to property. • The act also covers people who cause a horse to pose a danger.

25. ANY QUESTIONS ???