Tort Law
Unreasonable that someone who has been using their land in a way for years is liable when a new neighbour moves in and complains
Nuisance
S 9(1)(b) covers the opportunistic burglar who enters as a trespasser and then decides to steal
Burglary
Terms in fact help to give business efficacy to contracts (The Moorcock)
Implied Terms
Damages for loss of amenity are available if purpose of contract was provision of pleasurable amenity (Ruxley Electronics)
Remedies
There is a lack of definition of occupier and this can be more than one person
Occupiers' Liability
Allows you to protect your land as it is actionable per se and you do not need to prove harm
Trespass
Can be guilty of an offence even if it is impossible to commit. Criminal Attempts Act 1981, s 1(2) & Shivpuri (1986)
Attempt
Unfair that if you sign something, even if you couldn't read it, you are bound by it (Thompson (1930))
Exclusion clauses
Law is unclear. Uncertain what type of association renders the defence not available (Shepherd (1988) c/w Heath (2000))
Duress
Hedley Byrne v Heller (1963) concerned a negligent statement rather than act or omission so law needed further development
Negligence
Can bring a claim under negligence which is broader (Read v Lyons (1947))
Rylands v Fletcher
Even if the cause of the behaviour was physical rather than psychological there is still a risk that D may offend in the future
Insanity
If one party isn't free to enter contract then it isn't a true free contract (Pao On)
Courts can be reluctant to impose duty on public authorities (ABC v St. George's Healthcare Trust & Ors (2015))
Negligence
The 2006 Law Commission report described the law as a 'mess'
Claimant must have actual knowledge of the risk (Nettleship v Weston (1971))
Defences
Distinction between hyperglycaemic and hypoglycaemic is an arbitrary one
Capacity Defences
Claimant should perform their own due diligence before entering contracts (Redgrave)
Allowing mental illness into defence would encourage medical disputes wholly disproportionate to the offence (Martin (2002))
Self-Defence
The public interest test must be satisified
Crown Prosecution Service
Injunctions are an equitable remedy and therefore not always guaranteed (Miller v Jackson)
Remedies
Law Commission Report 1995 said that the law operated "fairly, on the whole, and without undue difficulty"
Intoxication
Allowing the courts discretion as to when exceptions apply allows them to reach a fair and just decision in that case (Young v Thames Properties Ltd (1999))
Discharge
Judges are reluctant to allow claims which is consistent with public opinion (Tomlinson)
Occupiers' Liability
Is pragmatic in its application and the rules have been well established in response to specific cases
Formation