1- TORT - Negligence and DoC Flashcards
What must one prove for negligence?
Duty of Care
Breach
Causation
Remoteness
To determine duty of care (after no precedent found), what test is applied?
- Foreseeability of harm: must have been reasonably foreseeable that D’s lack of care would cause harm 👀
- Proximity: relationship of sufficient proximity between D & C 👯
- Fair, Just & Reasonable to impose duty ⚖️
What policy considerations are considered when determining what is ‘fair, just and reasonable’ for DoC?
Floodgates
Insurance (more likely to be liable if D is insured or should have been)
Crushing liability
Deterrence
Maintenance of high standards
Defensive practice
What is the general position on duty of care for omissions?
No such duty is imposed on failure to act
(But would go through precedent & 3-stage test)
What exceptions are there on the general rule for DoC for omissions?
- Statutory duty 🇬🇧
- Contractual duty 📝
- Sufficient control over claimant
- Assume responsibility for claimant
- Defendant creates the risk
What precedents are there for DoC for ambulance, fire brigade and police?
- Ambulance: to respond to a 999 call, within a reasonable time
- Fire Brigade: no DoC to attend fire, but if they do, owe duty to not make situation worse than positive act
- Police: NO duty to respond to emergency calls - duty to public to prevent them for reasonably foreseeable injury when arresting
What is the general rule for DoC for 3rd parties?
No liability imposed on someone for failure to prevent a 3rd party from causing harm
What exceptions are there for general rule for DoC for the 3rd parties?
- Sufficient proximity between D & C 👯
- Sufficient proximity between D & 3rd party👯
- D created danger🔥🤭
- Risk on D’s premises 🏡
What cases cover proximity?
- Decorator owed duty of care to lock claimant’s property when leaving, owed DoC when burglars got in🖌️✅
- Borstol boys nicked and damaged a boat - had a a history of escape and only escape was by boat🛶✅
- Details of police informer stolen from police car and harassed causing psychiatric harm👮✅
- No proximity between Police and potential victims of Yorkshire ripper🔪❌
- Glasgow city council not responsible for failure to evict a murderous neighbour as no assumption of DoC.🏴😡🔪❌
What cases cover special relationship?
- Borstal (boat breaking) boys and Home office - supervision 🚣✅
- No care or control between victim of Yorkshire Ripper and police 🔪👮❌
- Health authority discharged mental patient into community w/o supervision & he killed a child. No proximity between authority and patient or victim🤪🔪❌
What cases cover defendant created the risk?
- decorator who left the door open created the danger🖌️✅
- vandals set fire to cinema causing damage to neighbour - no DoC as did not know of the break in, nor was foreseeable.🎥🔥❌
What is the position on public bodies owing a DoC?
May owe duty where principles applicable to private individuals would
Very hard to argue for omissions
Must consider policy considerations
What cases cover statutory duty?
- local authority misdiagnosed a child with dyslexia, has assumed responsibility for his education therefore had a DoC📖✅
- Drunk solider fell off a moving lorry, commander owed solider DoC🪖🫡✅
- power to take kids into care is not a duty to do so👶❌
What are the 2 stages for considering whether D has breached DoC?
- Standard of Care
- Has D fallen below standard of care?
What is the definition on ‘standard of care’?
- That of a reasonably competent person
- Professionals: standard of a reasonable professional, focusing on act, not actor (standard not lowered/raised for experience)
- For professionals, apply Bolam test: not in breach where they’ve acted in accordance w/ practice accepted by responsible body skilled in that field
When is the Bolam test not applied for professionals?
For medical professionals who failed to advise a patient properly of material risks - must make patient aware of material risks & any reasonable alternative treatments (particularly ones they’d attach significance to)
How does illness/disability affect standard of care imposed?
When they’re aware of impairment, should act accordingly - failure to do so, may mean they’re negligent
If they had no idea before act, SoC adjusted
What factors are considered when determining if the D fell below the SoC?
- Likelihood of harm 🔮
- Magnitude of harm 💥
- Practicality of preventing harm 😮💨
. - Benefit of D’s conduct 🎁
- Common practice (court can rule the common practice itself is negligent) 🤠
. - ‘State of the art’ defence: assess D’s knowledge against that of profession 🔬
- Sport ⚽️
How does the ‘state of the art’ defence work under breach?
Unforeseeable risks can’t be anticipated so failing to guard against them won’t be negligence
How does sport work as a factor considered under breach?
Nothing short of reckless disregard for C’s safety would constitute a breach
Heat of the moment risks allowed
What is the meaning of ‘res ipsa loquitur’?
Where only plausible explanation for C’s injury is D’s negligence:
a) thing causing damage controlled by D
b) accident wouldn’t normally happen w/o negligence
c) cause of accident unknown to C
What 2 things are required to prove causation?
Factual causation
Legal causation
What is factual causation and how is it satisfied?
Establishing link between breach & damage
Apply ‘but for’ test: on balance of probabilities, but for D’s breach, would C have suffered their loss at that time, and in that way? If yes = satisfied
Where breach is failure to advise on risks, how is the ‘but for’ test satisfied?
Where C can prove they wouldn’t have had the treatment or would’ve deferred it had they been told
What test is used to satisfy factual causation for multiple causes operating together?
Material contribution test: ‘more than negligible’ contribution
Also applies to sequential cumulative cases
What test is used for factual causation for industrial disease, single agency cases?
Material increase in risk test
What must be applied if necessary once factual causation is satisfied, where there are multiple tortious factors?
Apportionment: apportion liability between defendants
In abestos cases, D’s are jointly and severally liable
What happens where there are 2 distinct events that cause the same damage, or worsen existing damage, but events are not linked? (for factual consideration)
No damage could be held for 2nd event
What NAI are there re legal causation?
That there was a NAI that broke the chain of causation:
- Act of God: exceptional natural event (not if foreseen)
- Acts of 3rd Parties: highly unforeseeable (unlikely where 3rd party is medical treatment unless so gross & egregious)
- Acts of Claimant: highly unreasonable (rare)
What is ‘remoteness’ and how is it proved?
C only recovers if the type of damage suffered 💥was reasonably foreseeable 👀at time D breached DoC - broad approach mostly used
1. D need not foresee the exact way damage occurs
2. D need not foresee extent of the type of damage, even if damage aggravated by C’s own weakness (thin skull rule)
What different types of losses are there?
- Personal injury 🤕
- Psychiatric harm 🤪
- Property damage 🏡
- Consequential economic loss 😭
- Pure economic loss 💸
What are the 2 main remedies for personal injury & death?
Damages
Injunctions (rare)
What are the 2 types of damages for personal injury/death?
- Special damages 👈: specifically provable & quantifiable financial losses at time of trials
- General damages👉: future financial losses, which can’t be specifically proven & non-quantifiable losses e.g. compensation for injury
What deductions are made when calculating damages?
- Contractual sick pay received due to injury
- Redundancy payment
- State benefits received as result of injury
What can be claimed by estate/family for death by way of compensation?
- Estate can claim for any losses suffered by deceased up to date of death 👈
- Certain family can claim compensation if they depended on deceased 👨👩👧👦
- May also be able to claim bereavement aware and/or funeral expenses ⚰️😭
