1- TORT - Negligence and DoC Flashcards

1
Q

What must one prove for negligence?

A

Duty of Care
Breach
Causation
Remoteness

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

To determine duty of care (after no precedent found), what test is applied?

A
  1. Foreseeability of harm: must have been reasonably foreseeable that D’s lack of care would cause harm 👀
  2. Proximity: relationship of sufficient proximity between D & C 👯
  3. Fair, Just & Reasonable to impose duty ⚖️
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What policy considerations are considered when determining what is ‘fair, just and reasonable’ for DoC?

A

Floodgates
Insurance (more likely to be liable if D is insured or should have been)
Crushing liability
Deterrence
Maintenance of high standards
Defensive practice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is the general position on duty of care for omissions?

A

No such duty is imposed on failure to act
(But would go through precedent & 3-stage test)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What exceptions are there on the general rule for DoC for omissions?

A
  • Statutory duty 🇬🇧
  • Contractual duty 📝
  • Sufficient control over claimant
  • Assume responsibility for claimant
  • Defendant creates the risk
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What precedents are there for DoC for ambulance, fire brigade and police?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the general rule for DoC for 3rd parties?

A

No liability imposed on someone for failure to prevent a 3rd party from causing harm

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What exceptions are there for general rule for DoC for the 3rd parties?

A
  • Sufficient proximity between D & C 👯
  • Sufficient proximity between D & 3rd party👯
  • D created danger🔥🤭
  • Risk on D’s premises 🏡
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What cases cover proximity?

A
  • 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.🏴󠁧󠁢󠁳󠁣󠁴󠁿😡🔪❌
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What cases cover special relationship?

A
  • 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🤪🔪❌
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What cases cover defendant created the risk?

A
  • 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.🎥🔥❌
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is the position on public bodies owing a DoC?

A

May owe duty where principles applicable to private individuals would
Very hard to argue for omissions
Must consider policy considerations

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What cases cover statutory duty?

A
  • 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👶❌
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What are the 2 stages for considering whether D has breached DoC?

A
  1. Standard of Care
  2. Has D fallen below standard of care?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is the definition on ‘standard of care’?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

When is the Bolam test not applied for professionals?

A

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)

17
Q

How does illness/disability affect standard of care imposed?

A

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

18
Q

What factors are considered when determining if the D fell below the SoC?

A
  • 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 ⚽️
19
Q

How does the ‘state of the art’ defence work under breach?

A

Unforeseeable risks can’t be anticipated so failing to guard against them won’t be negligence

20
Q

How does sport work as a factor considered under breach?

A

Nothing short of reckless disregard for C’s safety would constitute a breach
Heat of the moment risks allowed

21
Q

What is the meaning of ‘res ipsa loquitur’?

A

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

22
Q

What 2 things are required to prove causation?

A

Factual causation
Legal causation

23
Q

What is factual causation and how is it satisfied?

A

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

24
Q

Where breach is failure to advise on risks, how is the ‘but for’ test satisfied?

A

Where C can prove they wouldn’t have had the treatment or would’ve deferred it had they been told

25
Q

What test is used to satisfy factual causation for multiple causes operating together?

A

Material contribution test: ‘more than negligible’ contribution
Also applies to sequential cumulative cases

26
Q

What test is used for factual causation for industrial disease, single agency cases?

A

Material increase in risk test

27
Q

What must be applied if necessary once factual causation is satisfied, where there are multiple tortious factors?

A

Apportionment: apportion liability between defendants
In abestos cases, D’s are jointly and severally liable

28
Q

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)

A

No damage could be held for 2nd event

29
Q

What NAI are there re legal causation?

A

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)

30
Q

What is ‘remoteness’ and how is it proved?

A

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)

31
Q

What different types of losses are there?

A
  • Personal injury 🤕
  • Psychiatric harm 🤪
  • Property damage 🏡
  • Consequential economic loss 😭
  • Pure economic loss 💸
32
Q

What are the 2 main remedies for personal injury & death?

A

Damages
Injunctions (rare)

33
Q

What are the 2 types of damages for personal injury/death?

A
  • 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
34
Q

What deductions are made when calculating damages?

A
  • Contractual sick pay received due to injury
  • Redundancy payment
  • State benefits received as result of injury
35
Q

What can be claimed by estate/family for death by way of compensation?

A
  • 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 ⚰️😭