Tort Law

Tort Law

QUESTION ONE

1a). Advise Susan and Geeta on their claims for battery

A decision by Susan and Geeta to claim for battery following the incident must be moulded on the basis that: one does not commit battery unless they act with inherent to harm another with gross criminal negligence involving a high degree of carelessness. Even then, an action may be justified if an accused offender acts intending to defend another person or property or if it is in self-defence. This far, Rob's actions unreservedly qualify to be considered battery against Susan and Geeta. The essentials of battery that subject Rob's actions to battery include intention, contact, harm, absence of consent, and absence of lawful justification. No detail is provided in the scenario to show that Rob was trying to launch self-defence against a physical confrontation initiated by either Nick, Geeta, or Susan.

The battery is a type of intentional tort. Unlike an assault which is generally a planned attempt to harm another person violently, battery is a deliberate touching of the other person without their consent and causing harm. Rob's actions fall into two broad categories of battery: criminal battery and civil battery. Firstly, whenever there is an intention to hurt or kill another person with offensive physical contact is regarded as a battery of crime. Rob's actions that hurt Geeta (though initially intended to harm Nick) are a battery of crime. Within criminal battery, intention plays a critical role as the action involves an intention to harm a person physically. Secondly, when a person has no intent to harm someone but commits an act that hurts another person, and the committers had an idea that their actions would hurt other people qualifies to be a civil battery. This battery is considered an intentional tort, but in the civil battery, the intention to harm another person is not present; therefore, Susan can lodge a complaint against Rob under civil Court.

There are different remedies under tort law for which Susan and Geeta can claim against Rob. The remedies include legal remedies and equitable remedies. Firstly, legal remedies are also referred to as damages, which are compensation given by the offender or defendant to the claimant or plaintiff to compensate for the pain, injuries, or suffering resulting from the defendant's actions. Susan and Geeta could receive compensation directly proportional to the incurred physical injuries as may be determined by the Court. The physical injuries on Susan and Geeta will be considered tort claims, and the compensation awarded by the Court is called "pain and suffering damages." Secondly, equitable remedies could be regarded as when monetary damages cannot restore the initial physical wellness of the victims: Susan and Geeta. Equitable remedies in this scenario could take the following two types based on the Court's decision: Temporary restraining order or temporary or permanent injunction. Firstly, since Rob has physically hurt Susan and Geeta, the claimants can obtain temporary restraining orders to prevent the defendant from making any contact with the plaintiffs or event coming close to them to seek out-of-Court solutions to the issues unless directed by the Court. Secondly, temporary or permanent injunctions can either prohibit unlawful activities initiated by Rob, or they can initiate affirmative steps to control the defendant. 

1b). Under the laws surrounding Occupiers' Liability, advise Lloyd on his claim for his injury and losses.

Occupiers' Liability is a distinct form of negligence that requires a duty of care and breach of duty, causing damage. Therefore, liability can arise on occupiers for omissions since their relationship gives rise to taking action to ensure the reasonable safety of visitors. The law relating to occupier's liability emanated from the common law but is currently embedded in two pieces of legislation within the United Kingdom context: Occupiers Liability Act 1957, which imposes an obligation on occupiers regarding the "lawful visitors" and the Occupiers Liability Act 1984 which sets liability on occupiers concerning people other than "the visitors." Various protection levels are expected under the two pieces of legislation, with a higher protection level afforded to lawful visitors. This analogy provides Lloyd with a well-resourced background on his claim for the injuries and damages incurred based on his legal visitor status.

The Occupiers' Liability Acts of 1957 and 1984 impose an obligation on occupiers based on the degree of control exercise. In this context, Snack Shack acknowledges that they did not consider the relevant qualifications of Thomas from Electric Interiors Limited, who fit the fan. This symbolizes negligence by the management at Snack Shack. Lloyd's claim can be pillared on the Occupier's Liability Act 1957, which imposes a standard duty of care on the Snack Shack to Lloyd, a lawful visitor at the premises. Under S.1(3)(a), the Act extends to fixed and movable structures, including vessels, vehicles, aircraft, and other equipment installed for specific functions. The protected damage under this Act includes personal injury, death, and property damage. Lawful visitors to who the Snack Shack owes the standard duty of care for the Occupiers' Liability Act of 1957 include licensees: S.1(2) Occupiers' Liability Act of 1957 –those who have expressed or implied permission to be within the premises. The Snack Shack has forfeited the common duty of care as set out in S.2(2) Occupiers' Liability Act of 1957 which states that:

'The common duty of care is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.' 

Though it may be possible for Snack Shack to discharge their responsibility by giving a warning of potential danger as is in this scenario, S.2(4)(a) Occupiers' Liability Act of 1957 provides that alerts provided to visitors will not be treated as absolving the occupiers of liability unless in all the underlying circumstances it was adequate to enable the visitor to be reasonably safe. The warnings must cover the dangers that arise because there is no duty to warn against apparent risks. The predicament facing Lloyd at Snack Shack follows an obvious risk because the facility did not bother to consider the qualifications of Thomas from Electric Interiors Limited before fitting the fan.

Though Snack Shack may seek to rely on S.2(4)(b) Occupiers' Liability Act 1957, it fails to provide adequate shelter because of outright negligence. The section provides that an occupier is not liable for dangers created by independent contractors or third parties if the occupier acted reasonably under the circumstances provided in entrusting work to the third party (independent contractor) and engaged reasonable measures to satisfy themselves that the work conducted was effectively and correctly done and the contractor was competent for the task. However, provided information reveals that Snack Shack did not bother to consider the qualifications of the independent contractor (Thomas from Electric Interiors Limited), whose possible careless or non-competitive skills resulted in the current injuries and damages caused to Lloyd.

A contrasting scenario involves the Gwilliam v West Hertfordshire Hospitals NHS Trust [2003] QB 443 case in which the Court held that the Hospital owed a duty of care under the Occupiers' Liability 1957, the assignment did not extend to checking whether the independent contractor had insurance cover because it would be relevant to whether they were competent. This was a case following the injuries sustained by the claimant after she fell using the Hospital's 'splat wall' whereby participants would bounce off a trampette against a wall and become attached to the wall utilizing Velcro material. Therefore, Lloyd (the claimant) is adequately protected by various legal provisions within the laws surrounding Occupier's Liability on his claim for his injury and losses. The claimant should seek compensation and legal redress on the issue.

1c). Advise Lloyd on his mesothelioma claim, focusing on causation issues. 

This is an issue of causation involving medical practice. Causation in English law concerns the establishment of remoteness, causation, and foreseeability in the tort of possible negligence. It is also relevant for English contract law and criminal law, as witnessed in the scenario involving Lloyd. Therefore, causation must prove a direct link between the negligence purported by the four different employers (the defendants) and the claimant's damage and possible loss. For these purposes, liability in negligence will be established if there were breaches of the duty of care owed by the defendants to Lloyd that caused the current medical condition, and it is reasonable that the previous employers should compensate the claimant for the damages and possible loss. Most importantly, causation in negligence, based on Lloyd's predicament, may be hard to determine because every negligence situation is subjective. Causation is not always apparent; therefore, various legal parameters must be followed to establish the cause of negligence by the four employers.

Lloyd's scenario falls within the proximate causation classification. Unlike the fact-based timeline of factual causation, this scenario involves a trickier legal concept. This is because, technically, there is no clearly elaborated connection or link between Lloyd's life currently and his life thirty years ago. Proximate causation involves numerous moving parts that must be conjoined to find a solution. Based on the comparable causation definition attributed to Lloyd's medical condition, the opinions, and options are not necessarily rooted in fact (cause-in-fact) but in establishing whether or not the health condition would have occurred without the proximate cause.

The primary question that Lloyd must ask before launching a legal cause is: is it reasonable that the defendants knew their actions could and would have caused harm to the claimant? Therefore, this causation approach needs to establish that a direct cause of the damage was done. It must not be anything coincidental or abnormal. It must not be foreseeable. The primary test for establishing causation in the scenario is the "but-for" test in which the four employees will be liable only if Lloyd's mesothelioma health condition would not have occurred "but-for" the defendants' negligence. Alternatively, the four employers will not be responsible if the mesothelioma health condition would, or could on the balance of other probabilities within the thirty years, have occurred anyway, irrespective of their negligence. Therefore, various medical tests must clearly distinguish between the cause and the health precondition to effectively link the four employers to Lloyd's health condition.

QUESTION THREE

3a). Advise Iwona and Emma on their potential nuisance claims.

The occurrences between Iwona and Emma constitute a private and public nuisance. Firstly, the move by Iwona to play her television at full volume in the evenings is a private nuisance because she is lawfully entitled to it. Still, the actions become a nuisance when the act's consequences extend to her neighbour. This private nuisance is actionable, and the claimant (Emma) can initiate civil proceedings against the defendant (Iwona) for (i). Damages to compensate her for nuisance, and (ii). Injunctive relief to abate a continuing nuisance and prevent its recurrence. Secondly, the move by Emma to continuously play music during late afternoons would constitute to public nuisance because she does not own the apartment but on a rental basis. A public nuisance arises from an act that endangers other people's health, property, life, morals, or comfort or obstructs the public from exercising or enjoying universal rights. Though a public nuisance is actionable in tort, Emma's actions do not constitute public nuisance because the scenario indicates that she played music during the late afternoon "at a reasonable level" and does not contribute to a criminal offence.

When Iwona and Emma initiate common law nuisance proceedings, the Court will undertake a civil balancing exercise, weighing up the factors in each case with overreaching principles of reasonableness. Examples of factors to be weighed include the time of occurrence, duration, frequency, location or proximity, and whether it is a malicious act or a reasonable use of the property by the defendant (Iwona and Emma are both the defendant and claimant interchangeably). The following principles apply to this case: (i). The fact that Iwona has an underlying health condition and yoga activities resulting in the need for controlled noise, her resultant nuisance action is not a defence to a common law nuisance claim. Neither is the defendant's compliance with its environmental permit, (ii). A one-off decision event is unlikely to amount to a nuisance, which does occur in the provided scenario. (iii). The Court will assess the annoyance according to the effect on a reasonable, rather than a hypersensitive, claimant.

The English law nuisance law provides various remedies of interim or final injunctions, which may require Iwona to cease the nuisance, together with compensation (possible damages) for Emma's possible loss of peace or enjoyment of their property rights. However, under exceptional circumstances, compensation may be awarded in lieu of an injunction. Statutory nuisance in the United Kingdom provides an alternative remedy of an abatement notice, which is breached and incurs a criminal sanction. The public and private nuisance torts require the claimant to prove that the actions by the defendant resulted in significant interference, which was unreasonable, and under exceptional circumstances, the defendant's intention may also be considered. This far; therefore, Iwona needs to realize that her actions are retaliatory to Emma's "reasonable volume level" music in the afternoons. Also, Iwona's actions are frequent in the evenings, which may cause disturbance to other residents in the neighbourhood.

3b). Advise whether Embrace Fashions Limited may be vicariously liable for the battery.

The most common vicarious liability cases emanate from the employer-employee relationship between Emma and Embrace Fashions Ltd. The latter would be held liable for the unlawful and tortuous actions of the former because the conduct occurred during the scope of the employee's work. The use of force is necessary for committing the battery. Harm through force or coercion is not a basic requirement, but the use of force is essential to conduct battery. The scenario effectively satisfies the three most important players in a vicarious liability situation: (i). Principal: -the entity that authorizes an agent to act in their place or supervises them, (ii). Agent: -the authorized person to work or be supervised by the principal, and (iii). Plaintiff: -the individual who is harmed by the agent's actions. Therefore, the vicarious liability situation arises in the scenario when the agent is the sole actor, yet the principal is liable for actions not conducted by them, not accomplished at their direction, not aided by their direct involvement, and not done within their knowledge. Put simply, the shoplifter (the plaintiff) can initiate legal proceedings against Embrace Fashions Ltd (the principal) for Emma's (the agent) conduct, even when Embrace Fashions Ltd was not directly involved in the event.

The vicarious liability statute was developed as a means to compensate victims of losses at the hands of individuals whose actions caused the losses or suffering but whose ability to compensate the victims was non-existent or minimal. The strict liability statute imposed on Embrace Fashions Ltd, who did not directly commit the offence or tortuous act, is counter-intuitive to the well-established principles of tort law that hold an individual liable for loss only when they cause it and then only if they are at fault. The common thread in this vicarious liability case is that it is relationship-based in that fairness dictates that liability ensues only where a relationship between the firm or entity and the offender is close to warranting the decision. The close association (employment or contractual basis) relationship between Emma and Embrace Fashions Ltd imports legal concepts into the appropriateness of imposing vicarious liability on the employer and offers an interrogation on the possible careless application of the statute. The vicarious liability statute has been part of English law for many years. Though resorting to it is relatively rare, it would help produce an outcome that resonates intuitively with justice and fairness under the circumstances provided in this case.

3c). Under the laws surrounding Occupiers' Liability, advise Paula on her claim for her injury and losses. 

For a personal injury claim to be successful, the injuries sustained by Paula must result from the negligence or breach of duty of Clearwell Water Fun Limited, who had the duty of care to Paula and other users of Clearwell lakes. Similar to other circumstances, the facility's management (Clearwell Water Fun Limited) owes the duty of care to visitors and users of their services. The onus that the law places on Clearwell Water Fun Limited in relation to protecting their visitors is strict; therefore, the law is protective of Paula and, though there are circumstances when the visitors may be injured through their faults and failure to respect warning signage, it is fair to submit that Emma should institute her claims because the predicament emanates from negligence. It is safe to establish that Clearwell Water Fun Limited did not provide a safe social environment or a safe system of play, thereby giving rise to liability on the part of the management. The Court will consider the child's age (child visitors as elaborated in the Occupiers Liability Act 1957) and the level of understanding of the child within that age (Paula is aged 8). This is similar to Titchener v British Railways Board [1983] 1 WLR 1427 case in which the Court held that the scope of the duty owed to non-invited visitors varies depending on age. In this case, the defendants did not owe a commitment to a 15-year-old claimant who was fully aware of the risks of trespassing portrayed by the defendants through signage.

Occupiers' Liability requires a duty of care and breach of duty, causing damage. In this scenario, various legal statutes and protection levels, including the Occupiers Liability Act 1957 and the Occupiers Liability Act 1984, provide high protection level afforded to Paula, a lawful visitor. The two statutes offer Emma a well-resourced legal foundation for her claim for the injuries and damages caused to Paula based on their lawful visitor status. Though Clearwell Water Fun Limited has discharged its duty by providing well-placed and visible or discouraging the visitors from risking their lives diving into the lake, the admission that they were not aware of the boulder in the water is of utmost negligence. Also, the management contends that people always dived into the late but had taken no steps to manage the situation. Emma's claim would seek to rely on the decision in the Tomlinson v Congleton [2003] 3 WLR 705 case in which the jury held that no risk arose from the state of the premises as required under S.1(1)(a) Occupiers Liability Act 1984 after the claimant was injured when he dived into shallow water run by the defendant and broke his neck. The risk arose from the claimant's action because he was a person of full capacity who voluntarily and without pressure or inducement engaged in an activity with an inherent risk. In contrast, Paula is only aged eight years, whose well-being is not well-catered for by Clearwell Water Fun Limited.

Bibliography

Primary sources

Case laws

Gwilliam v West Hertfordshire Hospital NHS Trust [2003].

Tomlinson v Congleton [2003].

Acts and Statutes

Occupiers' Liability (United Kingdom) Act 1954, c 30, S.1(3)(a).

Occupiers' Liability (United Kingdom) Act 1954, c 30, S.1(2).

Occupiers' Liability (United Kingdom) Act 1954, c 30, S.2(2).

Occupiers' Liability (United Kingdom) Act 1954, c 30, S.2(4)(a).

Occupiers' Liability (United Kingdom) Act 1954, c 30, S.1(1)(a).

Secondary sources

Books

Timothy Endicott, Administrative Law (OUP 2009)

Horsey, Kirsty and Erika Rackley, Tort law, 6th edn (Oxford University Press, 2019)

Fleming, John G, The law of torts (Law Book Co., 2020)

Suzuki, Carol M., Lawrence C. Levine, Ibrahim J. Gassama, Joan E. Vogel, and Dominick

Vetri, Tort Law and Practice (Carolina Academic Press, 2020)

Tamblyn, Nathan,’ Occupiers' Liability. In Tort Law, pp. 231-250 (Routledge, 2019)

Van Dam, Cees. European Tort Law (OUP, 2013)

Article journals

Dimond, Bridgit,’ Occupiers' Liability Acts 1957 and 1984: children and trespassers’ (2002) 11 British Journal of Nursing 18, 1186

Payne, Douglas,’ The Occupiers' Liability Act’ (1958) 21 The Modern Law Review  4, 359

Harris, Daniel,’ The Rival Rationales of Vicarious Liability’ (2021) Fla. St. U. Bus. Rev 20, 49

Pawlowski, Mark. "Landlord's liability as occupier to trespassers." Landlord and Tenant

Review 23, no. 5 (2019): 174-178.

Dimond, Bridgit. "Statutory duties under the Occupiers' Liability Act 1957." British journal

of nursing 11, no. 17 (2002): 1125-1127.

Websites

Bailey, Stephen,’ Occupiers' liability: the enactment of 'common law' principles’ (2018). accessed 16 December 2022