2017 cases tort Flashcards
Blyth 1856
Breach of duty/ objective/reasonable man
Negligence is conduct which falls below the standard of the reasonable man
Blyth is the modern test for breach of duty
Donoghue v Stephenson 1932
Duty of care
Established the neighbour principle-
“Persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question”
Caparo v Dickman 1990
Duty of care
3 stage test: FORSEEABilty - is it reasonably foreseeable
Proximity between parties
Fair just and reasonable to impose a duty on public policy grounds to impose a doc
Smith and others v Littlwwoods org ltd 1987
Duty of care/Reasonable foreseeability (objective)
Not guilty
Fire on old cinema premises
Watson v British boxing board of control 2000
Duty of care/Proximity
AND
Breach of duty/vulnerability of the claimant
Was liable
Proximity/FORSEEABilty
L and another v reading BCI and others 2007
Duty of care/ Fair, just and reasonable to impose a duty on public policy grounds
Hill v CC of West Yorkshire 1988
“Yorkshire ripper”
Duty of care/public policy/defendant is a stat authority
It was not “fair just and reasonable” to impose on the police a duty of care to protect potential victims
Police owe no general duty of care to public
Police do not owe a doc to any one individual
Insufficient proximity- victim was at no greater risk than anyone else
rces should be best used without interference from the courts. In Hill v Chief Constable of West Yorkshire [1998], Mrs Hill failed in her action to hold the police negligent for releasing the Yorkshire Ripper after they had had him in custody.
Osman v Uk 1999
Duty of care/ public policy/stat authorities immunity is not absolute
Immunity of public authorities may not be absolute
Family shot dead, police knew there was a risk
Not liable
Baker v Hopkins, Ward v Hopkins 1959
Use these both together when quoting
Duty of care/ D owes a doc to a rescuer
The “rescuer” situation/ public policy
Doctor went down in well to try to resume workmen over one by fumes
Bourhill v Young 1942
Duty of care/secondary victim/nervous shock
Psychiatric harm/nervous shock/ secondary victims
Pol- the harm must be reasonably forseeable by a person of reasonable fortitude- miscarriage was not reasonably foreseeable
Pregnant fishwife Suffered miscarriage after hearing/seeing a motorcycle crash
McCloughlin v OBrien 1982
Duty of care /secondary victim/Psychiatric harm
Although not present at the accident, it was a reasonably FORSEEABLE consequence of Ds negligence
And- proximity of relationship
Heard of her families deaths
Alcock and others v cc of s Yorkshire police 1992
What must secondary victims show?(4)
Duty of care/secondary victims/psychiatric harm
For “passive witnesses of an event:
- There must be sudden shock,
- psychiatric harm(rather than merely physical) harm must be FORSEEABLE,
- proximity of relationship to primary victim, -physical proximity
- and must see/hear with own senses
Hilsborough disaster
White and others v cc of s Yorkshire police and others 1999
Rescuer/public policy
Rescuers who suffer only psych injury are no longer automatically classified as primary victims
Police officers present at hillsborough
Page v smith 1995
Duty of care/ primary victims/ nervous shock
Pol- a primary victim doesn’t have to show that psych injury was FORSEEABLE as long as he can show that SOME injury was FORSEEABLE
ME
Hinz v berry 1970
Duty of care/ claimable harm/sorrow and grief
Damages are not recoverable for normal sorrow and grief
Pregnant woman and her kids witnessed accident involving her husband and suffered severe depression from this. Awarded damages for clinical psych damage
Roe v minister of health 1954
Breach of duty /standard of care
Reasonable FORSEEABilty at the time
Spinal anaesthetic caused paralysis, but practice used was not known to be dangerous at that time. Not liable therefore
Nettleship V Weston 1971
Breach of duty/reasonable standard of care
Learner driver
Skill expected of d was that of a reasonably competent driver. D was liable
Bolam v friern hospital management committee 1957
Breach of duty/standard of care
Reasonably competent professional
ECT without drugs or restraint. NG
Bolitho v city and Hackney health authority 1997
Breach of duty/standard of care
Accepted body of professional opinion
Whitehouse v Jordan 1981
Breach of duty/standard of care
Baby died but HoL ruled that doctors standard of care didn’t fall below that of a reasonable doctor in the circs. Not liable.
Chester v Afshar 2004
2 points of law
Breach of duty/standard of care
- Causation in fact “but for”in practice-“more probable than not”
- Doctor has duty to explain risks to patient
Bolton v stone 1951
Breach of duty/standard of care/FORSEEABilty of harm
Magnitude of risk test
Greater the risk the greater the precautions needed
Cricket balls. Not guilty
Paris v Stepney 1951
Breach of duty/standard of care/other factors determining breach
Vulnerability of the claimant
(One eyed man)- employer liable
Mullin v Richards 1998
Breach of duty/standard of care/⬇️standard for children
Fencing with plastic rulers. Not liable as not FORSEEABLE
Watt v Herts cc 1954
Breach of duty/standard of care/ defendants objective (socially desirable activity)
Fire brigade trying to help and one of them was injured
Latimer v aec 1953
Breach of duty/standard of care/ cost of avoiding the harm
Slippery floor, sawdust but not enough to cover whole floor. C slipped. D not liable
Barnett v Chelsea and Kensington HMC 1969
And holt v edge2007
Causation in fact
But for test
Mr Barnett work have died anyway
Not guilty
Wilsher v Essex aha 1986
Where the injury is “indivisible”
Multiple potential causes of harm
More probable. Than not
Prem baby died . 5 possible causes therefore HA not liable as claimant could not prove that the o2 killed him (20%)
Baker v Willoughby 1969
Successive causes of harm
Injured at work then 2nd accident 3 year later
Claimant entitled to be compensated for both
Fairchild v Glenhaven funeral services 2001
Multiple tortfeasors
For mesothelioma, any D satisfying the test for material increase in risk is liable for all the damage (ie jointly and severally) and can claim proportionately from the other Ds
And s3 Compensation Act 2006
Mc Ghee v NCB 1973
Causation in fact
Material increase in risk
C cleaned brick kilns. Post work exposure to dust materially increased risk of dermatitis so even though other factors were also involved, d was liable to him
Mc Kew v Holland 1969
Break in chain - d not liable
Intervening acts of the claimant
Going down steep steps with dodgy leg
Knightly v johns 1982
Break in chain
Intervening acts of a 3rd party
Broke chain of causation
Knightly v Johns [1982], the defendant had driven negligently and had blocked a tunnel. The police then drove the wrong way down the tunnel to block the other end of the tunnel as a result of which another accident occurred in which the police officer was injured. The defendant was held not liable for those injuries.
Corr v IbC vehicles ltd 2009
No break in chain
Intervening act of the claimant
Hol held that the suicide of the cs husband was not a break and was a FORSEEABLE consequence following an industrial injury
Webb v Barclays Bank Plc and Portsmouth hospitals NHS trust 2001
Medical novus interveniens
Negligent medical treatment (causation)
The doctor’s actions did not break the chain of causation but the Bank was entitled to a contribution from the Trust to reflect the proportion of pain, suffering and loss of amenity caused by them.
The wagon mound (no1) 1961
Causation in law
Foreseeability of type of injury
“If the type of harm is forseeable the D will be liable for all of it”
Smith v leech brain and co ltd 1962
Thin skull rule
Burn to lip turned cancerous. Predisposition to cancer but D liable anyway as it had to take him as it found him.
Lagden v o Connor 2004
Thin skull rule
Extends even to a claimants impecuniousity
Cs car damaged by Ds negligence and c didn’t have enough money to hire a car at normal rates. He has to hire one under a more expensive credit hire scheme. Hol held that theses higher costs were fully recoverable as c was innocent and his lack of money meant he had to get a replacement car with higher charges.
Hilton v Thomas burton (Rhodes) Ltd 1961
Main general case for what?
Vicarious liability
“A frolic of ones own”
Employer NOT vicariously liable
Employer not liable for an accident which occurred on an unauthorised lunch break 7 miles away from where he was meant to be.
JGE v Trustees of Portsmouth RC Diocesan Trust 2012
Lester v Hesley hall
Vicarious liability
Relationship “akin to employment”
Organisation WAS vicariously
liable JGE
- and related to the employment (lester)
Ready Mixed Concrete 1968
Hall v Lorimer 1991?
Vicaroius liability
Multiple test- this is now widely used instead of the other 2 tests
Based on the “economic reality” of the situation which means that the court will look at ALL THE CIRCUMSTaNCES in which the person works i.e.: control issues, how status defined in contract, how he is paid, whether he pays his own tax and NI.
In this case, court found lorry driver was self employed.
Cassidy v MOH 1951
Vicarious liability
Organisation test- used as sometimes control test inappropriate where employee a skilled professional. Person is an employee if he is “part of the organisation”.
It was held here that a hospital authority was vicariously liable for the negligence of a full time medical staff as they were part of the organisation of the hospital.
Yewens v Noakes 1880
Vicarious liability
Control test- if the employer could tell worker what to do and how to do it, he was an employee.
This is the traditional test.
Mersey Docks v Coggins 1946
Vic lia
A “lent employee”
Presumption is that original employer retained control -If the employer seeks to avoid liability he must show that control was transferred to the borrowing employer
Clunis 1998
Defences
Ex turpi
Claim struck out on basis of ex turpi causa
In the case of Clunis v Camden and Islington Area Health Authority [1998] Clunis, who had been convicted of manslaughter on the ground of diminished responsibility, sued the Health Authority for releasing him from a psychiatric hospital without making a proper assessment of his mental condition. He failed in his action as the Health Authority was able to show that the claim was based on Clunis’ illegal act and that he knew what he was doing when he killed his victim.
Gray v Thames Trains 2009
Defences
THe inextricable test link
Hol held that as a matter of public policy, a person should not be compensated for the consequences of his own criminal record
C was in ladbroke rail crash and got ptsd. Later stabbed someone to death. He was jailed and unable to earn money. Hol held that his loss of earnings was inextricably linked to his crime and therefore he shouldn’t be compensated
Stermer v Lawson 1977
Defences
Volenti non fit injura (consent)
Defendant must show that c knew of the risks to which his conduct exposed him
Claimant did not appreciate the risks and so did not consent
Stermer v Lawson [1977], the defence of volenti failed as, although the Claimant had borrowed the Defendant’s motorbike voluntarily, he had not been shown how to use it and he was not therefore aware of the precise risk.
Cases related to contributory negligence
4
Sayers and Harlow 1958- locked in toilet but 1/4 responsible for her own injuries
Davies and swan 1949- put himself in a dangerous position- in dangerous place next to a lorry
Froom v butcher 1976- failed to wear seatbelt
Fitzgerald v lane - walked out in traffic when pedestrian lights red.
Case where court reluctant to find contrib negligence
Children
Gannon v Rotherham mbc 1991
Court usually reluctant to find child contrib neg but did in this case
Rescuers - baker v Hopkins
Harrison v brb 1981
Courts usually sympathetic to rescuers but found this rescuer (claimant) contrib negligent
Dilemma principle- this is where court accepts that c in a difficult situation. However this claimant was 1/4 liable
Sayers 1958
Employees - only likely to be contrib neg if he refuses to wear safety clothing
Limitations
Haward and others v Fawcetts and another 2006
Re date of knowledge for personal injury (s14 LA 1980)
The relevant date is not when the c first knew he had a claim but the earlier date when he first knew enough to begin investigating he poss that the D may have been negligent
Similar decision as in Mackie
Limitation periods
Maga v RC archdiocese of Birmingham 2010
Exception to general limitation period of 6 years for tort
If a c is under a disability, claims will never be statute barred under LA 1980 (no limitation periods apply)
6 years after end of dis or death
S28(1) LA 1980
Mc cloughlin v o brien 1982
Use for proximity of relationship
And for secondary victim- she didn’t witness the crash but heard about it and visited her family in hospital - hop held that she should be compensated as her nervous shock was a reasonably foreseeable consequence of the Ds negligence
Case to use for general vicarious liability question
Hilton v Thomas Burton 1961
