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Unit Outcomes

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3a.1 Definitions of Tort and Contract define tort define contract 3a.2 General Characteristics of Tortuous liability Describe the nature of general tortuous liability comparing and contrasting to contractual liability 3a.3 Aims and Objectives of the Law of Torts a 3a.4 Compare and Contrast Tort and Contract similarities differences 3a.5 Case Examples tortuous liability contractual liability Part 1: Theory 3b.1 Describe Occupier

Examine the role of the Law of Tort in business activities assessing particular forms of tortious liability (3)

3b.2 Discuss Liability to visitors define occupier liability duty of care to visitors discharge of duty to visitors (reasonable measures and warnings) Part 2: Relate to Case 3b.3 Issue: Do it on your own Explain the liability applicable to an occupier of premises 3b.4 Explain Trespasser & Duties to Trespasser 3b.5 Prime Computers liability to trespassers analyze prime computers actions and responsibilities as an occupier (such as standard of care) apply relevant rules (i.e. duty owed, duty broken, damage, warning) case examples 3b.6 Conclusion (draw assumption from analysis) Discuss the nature of employers liability with reference to vicarious liability and health and safety implications

Part 1: Theory 3c.1 Vicarious Liability define vicarious liability explain employers liability with reference to vicarious liability

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Feedback 3c.2 Tests Applied by the Courts to prove employment relationship between Prime Computers and Peter, Bob and Lydia. The control test The integration test The multiple test other factors does the alleged employer have the power to select or appoint its employees, any may it dismiss them? course book page 117 clause (b) Payment of salary is a fair indication of there being a contract of employment course book pg 117 clause (c) case examples CASE 1: Peter Part 2: Relate to Peters Case 3c.3 Issue would Prime Computer be held vicariously liable for tort committed by Peter?

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Discuss the nature of employers liability with reference to vicarious liability and health and safety implications

3c.4

Apply Rules and Provide Analysis for Course of Employment course of employment (employer is vicariously liable for the following torts of employees) employee disobeys orders as to how he shall do his work course book page 118, clause (a) while engaged on his duties, the employee does something for his own convenience course book pg 119, clause (b) course of employment (employer is not vicariously liable for the following torts of employees) if employer allows the employee to use the employers vehicle for employees own affairs, the employer is not liable for any accident which may occur. There is the same result when a driver disobeys orders by giving a lift to a passenger who is injured 0 course book page 119 case example: Twine v Beans Express 1946

3c.5

Conclusion (draw assumption from analysis)

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Feedback CASE 2: Claim for Bob Part 3: Issue 3c.6 Issue whether Prime Computers provided a safe place of work in exposing employee (Bob) to continuous tobacco smoke 3c.7 Define and Apply Occupational Safety and Health Part 4: Relevant Rules & Analysis for Breach, Causation; Remoteness and Egg Shell Skull 3c.8 Breach of Duty of Care was employer aware of the problem of enforcing a nosmoking ban? was employer also aware of the Bobs particular problem that he had high blood pressure and his chest condition could increase his risk of stroke and heart attacks as a result of this constant exposure? make reference to case example to Paris v Stephney Borough Council, 1951 to assess whether employer was in breach. was Prime Computers acting as a reasonable employer by allowing smoking and not enforcing his own policy that has failed? 3c.9 Causation; Remoteness & Egg Shell Skull for a successful claim, Bob must show that employers breach was the probable cause (Wilsher v Essex Area Health Authority, 1988) refer to Hotson v East Berkshire Health Authority, 1987 to determine courts decision on other possible causes. discuss remoteness (how far is the relationship between causation and damage) and egg shell skull principle to case 3c.10 Contributory Negligence would Bobs asthma problem contribute to the problem?

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Discuss the nature of employers liability with reference to vicarious liability and health and safety implications

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if the court found that smoking was the probable cause, would the compensation be reduced on the basis of Bobs asthma problem? apply contributory Negligence Act, 1945 it can result in a substantial reduction 3.11 Conclusion was Prime Computers be reasonably able to foresee that carelessness on his part may damage the claimant under duty of care? would the law allow that duty to result in liability? Refer to course book page 148 would Bob be successful in his claim? If so, whats the effect for contributory negligence on his asthma problem? Remark: how substantial in the reduction of claim due to contributory negligence depends on medical evidence available (Dann v Hamilton, 1939) CASE 3: Lydia Part 5: Relate to Lydias Case 3c.12 Issue would Prime Computers be held vicariously liable for tort committed by Peter? 3c.13 Breach of Duty of Care was employee owed a duty of care by employer for repetitive strain injury? Use case examples Bettany v Royal Doulton (UK) LRD (1993) and Pickford v Imperial Chemical Industries pic (1996) to confirm. should employer provide adequate instruction or training or explain the risks of failing to take adequate breaks?

Discuss the nature of employers liability with reference to vicarious liability and health and safety implications

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Feedback in considering the factors which impact on the question of breach such as cost versus the practicality of taking precautions and likelihood of harm resulting, would employer appear to have breached their duty? 3.14 Conclusion consider above points carefully and draw assumptions from analysis Part 1: Distinguish Strict Liability from General Tortuous Liability 3d.1 Strict Liability strict liability n. automatic responsibility (without having to prove negligence) for damages due to possession and/or use of equipment, materials or possessions which are inherently dangerous such as explosives, wild animals, poisonous snakes, or assault weapons. This is analogous to the doctrine of "res ipsa loquitur in which control, ownership and damages are sufficient to hold the owner liable even without proof of specific negligenct acts or omissions. (See: negligence, liability, res ipsa loquitur)http://legaldictionary.thefreedictionary.com/St rict+Liability strict liability is liability without fault (was the damage reasonably forseeable) Case example: Rylands v Fletcher 3d.2 Tortuous Liability Tort liability, which is defined by law, requiring an injured party to prove only that he or she was harmed in a specified way in order to collect damages. For example, the law provides that an employer is responsible if a worker is injured on the job. All the worker must do to collect Workers Compensation Benefits is to prove that the injury took place at work. Read more: http://www.answers.com/topic/st rict-liability#ixzz1A6mgGu50

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Discuss the nature of employers liability with reference to vicarious liability and health and safety implications

Distinguish strict liability from general tortuous liability

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tortuous liability revolves around duties fixed by law common tortuous liabilities may include negligence, trespass, nuisance and so on. The precise impact and extent may be modified by statue, for example consumer protection laws, environmental laws etc. Part 2: Relate to case 3d.3 Apply Tortuous liability to Prime Computers as an employer Injured party to prove that he or she was harmed in a specified way in order to collect damages in Peter, Bob and Lydia cases.

Distinguish strict liability from general tortuous liability

Essential Elements of the Tort of Negligence 1. A duty of care (Basic test): -Was the damage caused reasonable foreseeable -was there a relationship of proximity between claimant and defendant? -The law should allow that duty to result in liability. In particular, liability for the acts of independent third parties has been restricted.

Understand and apply the elements of the Tort of Negligence (4)

Explain and understand the application of the elements of the Tort of Negligence

2. Breach of that duty -standard of reasonable care i.e. the person concerned should do what a reasonable (average) man would do and abstain from doing what a reasonable man would not do. -case example an application, Nettleship v Weston (1971) Text book page 83 -rule for the standard of reasonable man knowledge and general practice existing at the time particular skill the balance must be struck between advantage and risk if is unusually vulnerable, a higher standard of care is expected. - discuss res ipsa loquitur i.e. the facts speak for themselves with case example, Scott v London & St Katharine Docks Co 1865 -what must claimant show to rely on res ipsa loquitur principle?

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3. causation -Define causation. (is the casual relationship between conduct and result) -The usual method of establishing factual causation is the but-for test. The but for test inquires But for the defendants act, would the harm have occurred? E.g A shoots and wounds B. We ask But for A's act, would B have been wounded? The answer is No. So we conclude that A caused the harm to B. The but for test is a test of necessity. It asks was it necessary for the defendants act to have occurred for the harm to have occurred. 4. Damage caused by the breach - damage was caused by breached of defendants duty of care. The plaintiff must demonstrate a loss or injury to recover. -types of damages

Explain and understand the application of the elements of the Tort of Negligence

Read more at Suite101: The Law of Negligence: Duty, Breach of Duty, Injury & Causation | Suite101.com http://www.suite101.com/content/thelaw-of-negligencea105023#ixzz1NPUfykeq
Remark: These elements must be considered in the above order and without one of the elements liability will not be proven.

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1.1 Claim Compensation for Nervous Shock Establishing Duty of Care, Breached of Duty, Causation and Damage - Did Tom owe a duty a care to Mimi, Chriss mother? Did Tom breach that duty? Who and what caused her to suffer from nervous shock? Was there any damage or injury done to her? - basic duty of care test for Tom to Mimi, Chriss mother using case example of Donoghue v Stevenson 1932 (duty of care owed to the ultimate consumer of goods thereby providing a potential remedy for a person injured by goods who was not in contractual relationship with the defendant). * foreseeability of harm to the plaintiff of class of plaintiff, i.e proximity in terms of relationship and time and space and that it was fair, just and reasonable to impose a duty.

Compensation for nervous shock: a). need to establish that Minmi has suffered a recognized medical condition Compensation will not be awarded for mere grief or distress: the claimant must prove a definite and identifiable psychiatric illness course book pg 151 Analyse the practical applications of particular elements of the Tort of Negligence b). by putting a person in fear of his own safety (Dulieu v White & Sons 1901), a claim may succeed c). or in fear for the safety of his children (Hanbrook v Stoke Bros 1925) d). or by making him an actual witness to an act of negligence by which he suffers nervous shock such as seeing his house on fire (Attia v British Gas plc 1987) e). A person suffering nervous shock may have a claim if they can show that there was a sufficiently close relationship between themselves and the primary victim and that they either saw the accident with their unaided senses or came upon the immediate aftermath. (McLoughin v OBrien 1982)

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Analysis and Conclusion -establish the relationship between Mimi and Chris, the seven year old boy whom she is fearing the safety for. -is there a duty of care owed to mere bystanders? Use case example: Bouhill v Young 1943 and Hearty v EE Caledonia 1996. - Use point (c) i.e. Mimi as actual witness and (d) the sufficiently close relationship between the her and Chris to determine that she probably comes within the criteria of McLoughlin v OBrien and Alcock v Chief Constable of South Yorshire 1992. - whether it is reasonable to assume that Tom owed her a duty of care. Was this duty breached? Analyze its causation and the damage. -Form valid conclusion 1.2 Claim for Mr.Winslows Brain Damage against Dr.Murphy Analyse the practical applications of particular elements of the Tort of Negligence Establishing Duty of Care, Breached of Duty, Causation and Damage - Did Dr. Murphy owe a duty a care to Mr. Winslow, Toms father? Did Dr. Murphy breach that duty? What was the caused (i.e. conduct and result of defendant)? Was there any damage done to Mr. Winslow? - Define standard of a reasonable man and apply test on Dr.Murphy. - Give case example - Provide analysis - Form conclusion by drawing assumptions from above analysis.

1.3 Claim for Watch Shop and Caf Store Establishing Duty of Care, Breached of Duty, Causation and Damage - Did Tom owe a duty a care to Watch shop and caf store? Did Tom breach that duty? What was the caused (i.e. conduct and result of defendant)? Was there any damage done to these two shops?

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Analysis for Duty of Care Owed to watch shop & Care Store - Could Tom, as the driver foresee potential harm to Watch shop and Caf store? Use the decision in Carmarthenshire Country Council v Lewis 1955 as an authority for establishing that a road user owes a duty of care to persons with property adjoining the highway. Compensation for economic loss -loss of profits connected with the repair to the premises subject to the limitations placed on the recovery of economic loss arising out of damage to property as opposed to pure economic loss as decided in Spartan Steel & Alloys Ltd v Martin & Co Ltd 1973. Decision to case example: -claim for damage to goods was successful -claim for loss of profit to these goods was successful -claim for loss of profit on the future goods i.e. those which could not be manufactured because of the shutdown of the furnace was not successful. The case clearly illustrates the issue of fair, just and reasonable as it was felt by the court that factory owners should insure against this type of loss. b -Pure economic loss is not recoverable (Murphy v Brentwood district council 1990) unless it arises from negligent advice or misstatements as per Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964 or falls within the special circumstances of Junior Books v Veitchi. - Apply facts of Murphy to determine (to conclude whether) Cafe store will be able to recover any loss to their trade. Conclusion: -Is physical damage and pure economic loss recoverable for watch shop and caf store?

Analyse the practical applications of particular elements of the Tort of Negligence

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1.4 Claim for Winslows Physical Injuries in the Accident Establishing Duty of Care, Breached of Duty, Causation and Damage - Did Tom owe a duty a care to Mr. Winslow? Did Tom breach that duty? What was the caused (i.e. conduct and result of defendant)? Was there any damage done to Mr. Winslow?

Breach of Duty of Care : Standard of Care Factors to determine breach of duty of care: -expectation of a reasonably competent car driver in case example Nettleship v Weston 1971. -driving too fast in a built up area (Bolton v Stone 1951) Analyse the practical applications of particular elements of the Tort of Negligence -should Tom heed his fathers advice? Causation Factors to consider causation: -connection between the breach and the injury by using but for test (Barnett v Chelsea & Kensington Hospital Management Committee 1969. -would Tom be liable for the injuries sustained in the accident itself using the but for test? Contributory Negligence Consideration of whether there is anything which would reduce the amount of damage or remove liability needs to be addressed. In this case Winslow was not wearing a seat belt. Tom could argue contributory negligence on Winslows part, i.e. that his actions have contributed to his own injuries in some way. If Tom succeeds, damages would be reduced to the extent that it could be shown that the wearing of a seat belt would have reduced or lessened the injuries received (Froome v Butcher 1976). b

Merit grades awarded Distinction grades awarded

M1 D1

M2 D2

M3 D3

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