2017 cases tort

Question 1

Blyth 1856

Answer 1

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

Question 2

Donoghue v Stephenson 1932

Answer 2

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”

Question 3

Caparo v Dickman 1990

Answer 3

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

Question 4

Smith and others v Littlwwoods org ltd 1987

Answer 4

Duty of care/Reasonable foreseeability (objective)

Not guilty

Fire on old cinema premises

Question 5

Watson v British boxing board of control 2000

Answer 5

Duty of care/Proximity

AND

Breach of duty/vulnerability of the claimant

Was liable

Proximity/FORSEEABilty

Question 6

L and another v reading BCI and others 2007

Answer 6

Duty of care/ Fair, just and reasonable to impose a duty on public policy grounds

Question 7

Hill v CC of West Yorkshire 1988

“Yorkshire ripper”

Answer 7

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.

Question 8

Osman v Uk 1999

Answer 8

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

Question 9

Baker v Hopkins, Ward v Hopkins 1959

Use these both together when quoting

Answer 9

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

Question 10

Bourhill v Young 1942

Answer 10

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

Question 11

McCloughlin v OBrien 1982

Answer 11

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

Question 12

Alcock and others v cc of s Yorkshire police 1992

What must secondary victims show?(4)

Answer 12

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

Question 13

White and others v cc of s Yorkshire police and others 1999

Answer 13

Rescuer/public policy

Rescuers who suffer only psych injury are no longer automatically classified as primary victims

Police officers present at hillsborough

Question 14

Page v smith 1995

Answer 14

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

Question 15

Hinz v berry 1970

Answer 15

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

Question 16

Roe v minister of health 1954

Answer 16

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

Question 17

Nettleship V Weston 1971

Answer 17

Breach of duty/reasonable standard of care

Learner driver
Skill expected of d was that of a reasonably competent driver. D was liable

Question 18

Bolam v friern hospital management committee 1957

Answer 18

Breach of duty/standard of care

Reasonably competent professional

ECT without drugs or restraint. NG

Question 19

Bolitho v city and Hackney health authority 1997

Answer 19

Breach of duty/standard of care

Accepted body of professional opinion

Question 20

Whitehouse v Jordan 1981

Answer 20

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.

Question 21

Chester v Afshar 2004

2 points of law

Answer 21

Breach of duty/standard of care

1. Causation in fact “but for”in practice-“more probable than not”
2. Doctor has duty to explain risks to patient

Question 22

Bolton v stone 1951

Answer 22

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

Question 23

Paris v Stepney 1951

Answer 23

Breach of duty/standard of care/other factors determining breach

Vulnerability of the claimant
(One eyed man)- employer liable

Question 24

Mullin v Richards 1998

Answer 24

Breach of duty/standard of care/⬇️standard for children

Fencing with plastic rulers. Not liable as not FORSEEABLE

Question 25

Watt v Herts cc 1954

Answer 25

Breach of duty/standard of care/ defendants objective (socially desirable activity)

Fire brigade trying to help and one of them was injured

Question 26

Latimer v aec 1953

Answer 26

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

Question 27

Barnett v Chelsea and Kensington HMC 1969

And holt v edge2007

Answer 27

Causation in fact

But for test

Mr Barnett work have died anyway
Not guilty

Question 28

Wilsher v Essex aha 1986

Answer 28

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%)

Question 29

Baker v Willoughby 1969

Answer 29

Successive causes of harm

Injured at work then 2nd accident 3 year later

Claimant entitled to be compensated for both

Question 30

Fairchild v Glenhaven funeral services 2001

Answer 30

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

Question 31

Mc Ghee v NCB 1973

Answer 31

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

Question 32

Mc Kew v Holland 1969

Answer 32

Break in chain - d not liable

Intervening acts of the claimant

Going down steep steps with dodgy leg

Question 33

Knightly v johns 1982

Answer 33

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.

Question 34

Corr v IbC vehicles ltd 2009

Answer 34

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

Question 35

Webb v Barclays Bank Plc and Portsmouth hospitals NHS trust 2001

Medical novus interveniens

Answer 35

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.

Question 36

The wagon mound (no1) 1961

Answer 36

Causation in law

Foreseeability of type of injury

“If the type of harm is forseeable the D will be liable for all of it”

Question 37

Smith v leech brain and co ltd 1962

Answer 37

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.

Question 38

Lagden v o Connor 2004

Answer 38

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.

Question 39

Hilton v Thomas burton (Rhodes) Ltd 1961

Main general case for what?

Answer 39

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.

Question 40

JGE v Trustees of Portsmouth RC Diocesan Trust 2012

Lester v Hesley hall

Answer 40

Vicarious liability

Relationship “akin to employment”
Organisation WAS vicariously
liable JGE

• and related to the employment (lester)

Question 41

Ready Mixed Concrete 1968

Hall v Lorimer 1991?

Answer 41

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.

Question 42

Cassidy v MOH 1951

Answer 42

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.

Question 43

Yewens v Noakes 1880

Answer 43

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.

Question 44

Mersey Docks v Coggins 1946

Answer 44

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

Question 45

Clunis 1998

Answer 45

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.

Question 46

Gray v Thames Trains 2009

Answer 46

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

Question 47

Stermer v Lawson 1977

Answer 47

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.

Question 48

Cases related to contributory negligence

4

Answer 48

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.

Question 49

Case where court reluctant to find contrib negligence

Answer 49

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

Question 50

Limitations

Haward and others v Fawcetts and another 2006

Answer 50

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

Question 51

Limitation periods

Maga v RC archdiocese of Birmingham 2010

Answer 51

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

Question 52

Mc cloughlin v o brien 1982

Answer 52

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

Question 53

Case to use for general vicarious liability question

Answer 53

Hilton v Thomas Burton 1961