Occupiers' Liability (Scotland) Act 1960…
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© A. Barrie Goldstone 2020: page 0 The Barrie Guide to Tort 2020 Volume Two Nervous Shock Private Nuisance Occupiers’ Liability Barrie Goldstone Head of the School of Law London Metropolitan University © A. Barrie Goldstone 2020: page 1 CONTENTS SECTION ONE: NERVOUS SHOCK 1 THE POLICY OF LIMITATION 2 DEFINING NERVOUS SHOCK 3 THE DEVELOPMENT OF THE LAW i. Originally there was no liability for causing someone nervous shock though negligence ii. There was liability for causing nervous shock deliberately iii. Duty owed in negligence to a primary victim only: the Kennedy Limitation iv. Duty recognised in negligence to a secondary victim v. Secondary victim duty denied to a mere bystander vi. Duty extended to secondary victims who have become unwillingly involved in causing the injuries to the immediate victim vii. Apparent inconsistency over duty to secondary victims viii. Duty extended to secondary victims who come to the rescue of immediate victims and are shocked by what they see ix. Duty extended to loved ones who see the immediate aftermath of an accident, rather than witnessing the accident itself x. Duty to primary victims subject to the ‘egg-shell’ skull rule 4 THE CURRENT LAW: Primary Victims i. The general rule of primary victims ii. Primary victims and the ‘thin skull rule’ iii. The extent of the threat to a primary victim iv. Examples of the application of the Page v. Smith rule v. Stillbirth arising from clinical negligence vi. Secondary victims and the ‘thin skull rule’ 5 RESCUERS AS PRIMARY VICTIMS 6 ACTIVE PARTICIPANTS AS PRIMARY VICTIMS 7 SECONDARY VICTIMS: Introduction 8 SECONDARY VICTIMS: Alcock v. CCSYP 9 SECONDARY VICTIMS: The Control Mechanisms © A. Barrie Goldstone 2020: page 2 10 SECONDARY VICTIMS: The First Control Mechanism i. The secondary victim must be a ‘loved one’ of the immediate victim ii. Mere bystanders iii. Mere bystanders claiming to be primary victims iv. Same sex couples 11 SECONDARY VICTIMS: The Second Control Mechanism i. The secondary victim must be proximate to the accident ii. Close in time iii. Close in space iv. Live TV transmissions 12 SECONDARY VICTIMS: The Third Control Mechanism i. The shock must have been caused by sudden horror at the event ii. Claims which failed because the shock was not a sudden reaction to the negligent act iii. Treating a series of events as a single event: exceptional cases 13 SECONDARY VICTIMS: Proposed Reform 14 SECONDARY VICTIMS: Further Limitations 15 PROPERTY DAMAGE 16 STRESS AT WORK 17 STRESS IN PRISON 18 FEAR OF CONTRACTING AN ILLNESS 19 MORTIFICATION AND HUMAN RIGHTS 20 TRYING IT ON © A. Barrie Goldstone 2020: page 3 SECTION TWO: PRIVATE NUISANCE 21 INTRODUCTIONS AND DEFINITIONS 22 WHO CAN SUE FOR NUISANCE? i. The general rule ii. An attempt to overturn the general rule iii. Restoring the rule iv. The claimant must have an interest in the affected land 23 THE POSSIBLE DEFENDANTS: THE PERSON WHO IS CREATING OR HAS CREATED THE NUISANCE 24 THE POSSIBLE DEFENDANTS: THE OCCUPIER OF THE LAND 25 THE POSSIBLE DEFENDANTS: THE LANDLORD OF THE PERSON WHO IS CREATING THE NUISANCE i. Authorising a tenant to create a nuisance ii. Some quirky cases iii. Committing the nuisance in the capacity of being a tenant iv. Liability towards one’s own tenants: Caveat Lessee 26 AN UNREASONABLE INTERFERENCE WITH THE ENJOYMENT OF LAND i. Noise: the racing stadium cases ii. Noise: the upstairs neighbours cases iii. Smells iv. Vibrations v. Natural encroachments vi. Sex establishments vii. Dust 27 INTERFERENCE WHICH DOES NOT USUALLY CONSTITUTE AN ACTIONABLE NUISANCE i. Interference with television signals ii. Right to a view (sometimes called ‘a prospect’) iii. Right to air-flow iv. Right to light v. Overlooking other people’s property © A. Barrie Goldstone 2020: page 4 28 THE INTERFERENCE MUST BE UNREASONABLE i. Normal behaviour ii. Duration and extent of the nuisance iii. Sensitivity of the claimant iv. Location v. The effect of planning permission on the character of a location vi. Malice by the defendant vii. Causing physical damage viii. The cost of non-abatement ix. The utility of the defendant’s conduct 29 PRIVATE NUISANCE AND HUMAN RIGHTS 30 POTENTIAL DEFENCES TO PRIVATE NUISANCE i. Coming to the nuisance ii. Twenty years prescription iii. Conduct permitted by statute 31 REMEDIES FOR PRIVATE NUISANCE i. Injunction ii. Damages iii. Abatement © A. Barrie Goldstone 2020: page 5 SECTION THREE: OCCUPIERS’ LIABILITY 32 INTRODUCTION 33 OCCUPIERS’ DUTY OF CARE TO VISITORS 34 WHO IS AN OCCUPIER? i. The statutory definition ii. Joint occupiers iii. Occupiers who are not in possession of the premises 35 WHAT ARE PREMISES? 36 WHO IS A VISITOR? i. Implied permission ii. Implied authority of an employee to invite people onto the employee’s premises iii. Rights of way 37 CHILDREN AS VISITORS AT COMMON LAW i. The Doctrine of Allurement 38 WHAT IS THE COMMON DUTY OF CARE? 39 AN OBJECTIVE TEST 40 ‘OCCUPANCY DUTY’ AND ‘ACTIVITY DUTY’ 41 ALL THE CIRCUMSTANCES OF THE CASE i. The slipping over cases ii. Slipping through stupidity iii. Precautions only need to be reasonable: they do not have to be absolute iv. Falling out of windows v. The occupier’s own safety vi. Visible hazards vii. Taking expert safety advice viii. Ignoring expert safety advice 42 EXERCISE OF A CALLING © A. Barrie Goldstone 2020: page 6 43 THE DUTY OWED TO CHILDREN UNDER OLA 1957 i. The additional duty owed to children ii. The limitations on the duty owed to children iii. The duty of parental responsibility 44 DAMAGE TO PROPERTY 45 THE EFFECT OF WARNINGS 46 OBVIOUS DANGERS i. The shallow water cases ii. Other obvious dangers 47 LIABILITY FOR INJURIES CAUSED BY THE FAULTY WORK OF AN INDEPENDENT CONTRACTOR i. Contractors doing technical work ii. Contractors doing simple jobs iii. Contractors doing dangerous work iv. Contractors misleading the occupier as to their ability or qualifications 48 CONTRIBUTORY NEGLIGENCE 49 EXCLUSION OF LIABILITY 50 OCCUPIERS’ LIABILITY TO NON-VISITORS PRE-1984 51 THE OCCUPIERS’ LIABILITY ACT 1984 i. Who is a trespasser? ii. When is a duty owed? The three criteria 52 AWARENESS OF THE DANGER i. The child trespasser 53 KNOWLEDGE OF THE TRESPASSER IN THE VICINITY 54 PROTECTION FROM THE RISK 55 THE STANDARD OF CARE REQUIRED UNDER OLA 1984 i. Warnings to trespassers ii. Obvious dangers do not require warnings 56 OLA 1984 DOES NOT COVER PROPERTY DAMAGE 57 OCCUPIERS’ LIABILITY AND NEGLIGENCE © A. Barrie Goldstone 2020: page 7 SECTION ONE: NERVOUS SHOCK 1 THE POLICY OF LIMITATION 1.1 Where a claimant suffers physical injury, he may claim also for any mental injury under the heading of ‘pain and suffering’. 1.2 However, where he suffers ONLY mental injury without any physical injury, his claim is much more limited. This is an issue of DUTY OF CARE. For purely policy reasons, the courts have restricted claims for pure psychiatric illness (nervous shock) with a set of special ‘control mechanisms’. 1.3 It has been clear since Dulieu v. White (1901) 2 KB 669 that a negligent act or omission which causes pure nervous shock may be actionable in damages, but such actions have been severely limited in two ways. 1. The claimant must prove that he has been caused to suffer from a recognised psychiatric illness, rather than mere grief or anxiety 2. He must also prove that he was owed a duty of care by the defendant, and in nervous shock cases the courts have imposed limitations far more strict than mere ‘reasonable foreseeability.’ 1.4 In White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455 (HL) Lord Steyn explained the policy reasons for these limitations. White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455 (HL) “In an ideal world all those who have suffered as a result of the negligence ought to be compensated. But we do not live in Utopia: we live in a practical world where the tort system imposes limits to the classes of claims that rank for consideration as well as to the heads of recoverable damages. This results, of course, in imperfect justice but it is by and large the best that the common law can do. The application of the requirement of reasonable foreseeability was sufficient for the disposal of the resulting claims for death and physical injury. But the common law regards reasonable foreseeability as an inadequate tool for the disposal of claims in respect of emotional injury. There are at least four distinctive features of claims for psychiatric harm which in combination may account for the differential treatment. “Firstly, there is the complexity of drawing the line between acute grief and psychiatric harm. The symptoms may be the same. But there is greater diagnostic uncertainty in psychiatric injury cases than in physical injury cases. The classification of emotional injury is often controversial. In order to establish psychiatric harm expert evidence is required. That involves the calling of consultant psychiatrists on both sides. It is a costly and time-consuming exercise. If claims for psychiatric harm were to be treated as generally on a par with physical injury it would have implications for the administration of justice. On its own this factor may not be entitled to great weight and may not outweigh the considerations of justice supporting genuine claims in respect of pure psychiatric injury. “Secondly, there is the effect of the expansion of the availability of compensation on potential claimants who have witnessed gruesome events. I do not have in mind fraudulent or bogus claims, but I do have in mind the unconscious effect of the prospect of compensation on potential claimants.