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Tort Law > Basis of negligence > Flashcards

Basis of negligence Flashcards

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1
Q

what is negligence?

A

Another area of tort, breach of a duty of care which results in damages

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2
Q

what are the other types of negligence apart from the main one youve been studying?

A

-

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3
Q

what are the 4 concepts/ingrediants/categories of negligence? & donoughe

A

Duty of Care
Breach of Duty (also called Standard of Care)
Causation aka damage
Defences

The modern law of negligence was established in Donoghue v Stevenson must prove:

  1. the defendant owed them a duty of care;
  2. the defendant was in breach of that duty;
  3. the breach of duty caused damage and;
  4. the damage was not too remote.
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4
Q

when you talk about duty of care also what do you need to think about?

A

The legal test for imposing a duty of care varies according to the type of loss.

For personal injury and property the Caparo test applies (case summary).

For psychiatric injury the Alcock test applies.

For pure economic loss

For policy considerations

For liability relating to an omission

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5
Q

DUTY OF CARE?- essentially what is duty of care

A

Essentially a RELATIONSHIP between two or more parties

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6
Q

intro duty of care e.g?

A

For the incident with Mo, Ed/Luigi could be liable for the tort of Negligence. To prove negligence it must first be shown that Ed owed Mo a “duty of care”. Under the principles of law established from the “neighbour principle” in Donoghue v Stevenson and refined in Caparpo Industries v Dickman (some duties obvious and some not), to have a duty the - 3 PART TEST

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7
Q

what is meant by relationship?

A

relationship - it could be pre exisiting (doc to patient) but also if they dont know you still rels e.g walking down road - road user liable for you

if there is no rels there is no negligence

if rels= go through process

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8
Q

what is meant by breach of duty?

A

a.k.a standard of care- actions/responsibilities within duty - looking for - certain standard/expectation of peoples behaviour- if fall below = liable

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9
Q

what is expecations based on?

A

based on reasonableness not about perfection

Essentially the BEHAVIOUR or expectations within that relationship
and whether these actions were REASONABLE?

starts off rmt then gradually reasonable personal test etc

special skill + risk factors

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10
Q

what if fall below standards of rmt?

A

look at causation

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11
Q

what is essentially causation?

A

aka damage

2 types of causation- causation in fact and legal

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12
Q

what is causation in fact?

A

Did the actions of the Defendant CAUSE the problem / injury?
(CSI-style investigation)

& how did it happen so factual etccccc we do this first - FACTUAL CAUSATION

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13
Q

what is legal causation?

A

am i liable, so should?

SHOULD the Defendant be liable for causing the problem / Injury

  • so the other factors
  • plus remoteness
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14
Q

what is meant by defences? (final ele) to prove negligence?

A

Is SOMEONE ELSE (or YOU) at fault as well as the Defendant?

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15
Q

HISTORICAL-Historical development of negligene?

A

England didnt have much neg principles developed, americans was further ahead

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16
Q

american case

A

american case- Palsgraf v. Long Island Railroad [1928] 248 NY 339, US Supreme Ct- Key Facts: Workers help man onto train but drop a bag of fireworks (which explode) knocking over scales  fall on a lady further down the platform - q should we pay for her injury- person with fireworks probably doesn’t neither guards, hidden in box so should we pay- NEED PROXIMATE CAUSE- NEED RESPONSIBILITY WE NEED TO PROTECT AND LOOK AFTER YOU- IF NOT= NO

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17
Q

cardazo about american case? and quote?

A

Ultramares Corporation v. Touche, 174 NE 441 [1947]- Key Facts: Auditors did not discover falsified entries to a set of accounts

Floodgates…..
“The Law should not admit to liability in an indeterminate amount for an indeterminate time to an indeterminate class.”
(Cardozo, CJ) [444] - need some aspect of predictability - interdemianncy= predcitable need to know fixed so we know what our responsibiltes and liabilites are

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18
Q

what about donoghue v stevenson?

A

ULTIMATE CASE- neighbour principle- pricniple of privity of contract - person ill didnt have contract but argue that there was duty of care = liability , werent cafe owner it was companies liability

19
Q

what is neighbour principle?

A

sets up duty of care dont always ned pre exsiting rels

20
Q

what about 2 different groups departing from donoghue?

A

we got narrow ratio and wide ratio

Narrow ratio restricts donoghue of only 2 products-so only 2 manu duty to consumers

21
Q

what are the number of early cases apart from dongohue?

A

product liability cases

Grant v. Australian Knitting Mills Ltd [1936] - PC- Key Facts: Woollen “Golden Fleece” underpants gave the claimant dermatitis after wearing them for a week (usual time!) before washing them

narow ratio application

22
Q

what is a wider ratio application case?

A

Haley v. London Electricity Board [1965]-Key Facts: Workers should have foreseen the presence of a blind pedestrian who tripped over the handle of a hammer left to warn of a hole ahead- yes fine if could se barrier but couldnt see barrier = duty of care owed yes?

23
Q

other cases to grasp the concept of duty?

A
  • Lamb v. Camden London Borough Council [1981]
  • Hilder v. Associated Portland Cement Co [1961]
  • Camarthenshire CC v. Lewis [1955]
  • Anns v. Merton LBC [1978]
  • Murphy v. Brentwood DC [1990]
  • Ravenscroft Rederiaktiebolaget Transatlantic [1991]
  • Muirhead v. Industrial Tank Specialists [1985]
  • Governors of the Peabody Donation Fund v. SirLindsay Parkinson & Co Ltd [1985]
  • Smith v. Littlewoods Organisation [1987]
24
Q

DUTY- going through the historical cases for duty how do we establish duty the modern way?

A

basics- if obv- donoghue

if not obv- three part test caparo industries

25
Q

what is the three part test?

A

who is my neighbour?
The 2 part test was proximity and policy only- more about pol judge shouldnt be making pol decisions it should be gov so…
3 part test=
Yeun Kun-yeu v. Attorney-General of Hong Kong [1987] - PC- gave foreseeability and proximity needed
Caparo Industries v. Dickman [1990]

26
Q

what did caparo give for 3 part test?

A
  • Forseeability of damage?
  • The relationship of “proximity” or “neighbourhood” between the parties; and
  • The court considering it fair, just & reasonable to impose a duty of a given scope on one party for the benefit of the other

-FORESEEABILITY-PROXIMITY-JUST & REASONABLE

27
Q

How has it been applied since then in other cases?

A
  • Topp v. London Country Bus (South West) Ltd [1993]
  • Wright v. Lodge [1993]
  • Stovin v. Wise [1996]
  • Stovin v. Wise [1996]
  • Gorringe v. Calderdale MBC [2004]
  • Customs & Excise Commissioners v. Barclays Bank plc [2006]
  • Islington LBC v. UCL Hospitals NHS Trust [2005]
  • Bhamra v. Dubb (t/a Lucky Caterers) [2010]
  • Barrett v. Ministry of Defence [1995]
  • Jebson v. Ministry of Defence [2000]
28
Q

Summary of establishing duty?

A

Leading Case: Donoghue v. Stevenson [1932] AC 562- neighbour pirinciple
Leading Case: Caparo Industries v. Dickman [1990] 2 AC 605 (HL)- 3 part test
3part-test: Forseeability, Proximity, Fair Just & Reasonable
Essentially just labels rather than individual requirements

29
Q

what is the next principle we need to think about for duty?

A

incremental steps

30
Q

what is incremental steps?

A

Sutherland Shire Council v. Heyman [1985] Australia- saying thats it no more new areas in negligence, if u wanted to bring case now in modern era use it as stepping stones

31
Q

examples of incremental steps?

A
  • Van Oppen v. The Clerk to the Trustees of Bedfordshire Charity [1989]
  • Philcox v. Civil Aviation Authority [1995]
  • Perrett v. Collins [1998]

(sports cases)

  • Smolden v. Whitworth & Nolan [1996]
  • Watson v. British Boxing Board of Control (BBBC) [1999]
  • Sutradhar v. National Environment Research Council [2006]
32
Q

leading case for incremental steps and summary?

A

Leading Case: Watson v. British Boxing Board of Control [2000] QB 1134 (CA)

Novel cases should adopt the ‘incremental’ approach and be brought within one of the existing categories of negligence first

Just because an organisation has expertise, this by itself does not make it responsible for third parties (without a proximate relationship)

33
Q

DUTY OF CARE LECTURE 2 ABOUT?

A

Revision of Negligence concepts, and standard duties of care
Introduction of Special duties of care
Application of these concepts to case law

34
Q

revision of duty lecture 1?

A
  • 4 elements
  • duty neighbour principle- dpnoghue
  • duty 3 part test-caparo
  • incremental approach-Sutherland & Watson
35
Q

DUTY OF CARE- today?

A

other liabilities that would fall within a duty of care

36
Q

Contracts, Reliance &Third Party Liability?

A

Donoghue is potentially third party

  • Leading Case: West Bromwich Albion Football Club v. El-Safty [2006] EWCA Civ 1299
    Leading Case: White v. Jones [1995] 2 AC 207 (HL)
    No general liability towards 3rd parties, however this can be amended by contractual provisions, or through an ‘assumption of responsibility’
37
Q

cases for this?

A

-

38
Q

what do we talk about after we talk about 3rd parties?

A

emergency services
Leading Cases: Hill v. Chief Constable of W Yorkshire Police [1989] AC 53 (HL)
Leading Case: Capital & Counties plc v. Hampshire County Council [1997] QB 1004 (CA)
Leading Case: Kent v. Griffiths [2001] QB 36 (CA)
Emergency services do not owe a general duty of care to the public, unless they have ‘assumed responsibility’

39
Q

cases for this?

A

-

40
Q

what about public bodies?

A

Leading Case: Home Office v. Dorset Yacht [1970] UKHL 2
Leading Case: X (Minors) v. Bedfordshire CC [1995] 2 AC 663 (HL)
State / Public organisations may have a presumption against liability, but this is not an immunity (rather whether it is fair, just & reasonable) to impose liability

41
Q

cases for this?

A

-

42
Q

what about Special Groups and duty of care?

A

Leading Case: Smith v. Ministry of Defence [2013] UKSC 41
The number of areas where there is complete immunity for negligence is now very small.
The modern approach is to review each decision on a case-by-case basis, as to whether it is ‘fair, just & reasonable’

(pshyciatric injury)

43
Q

cases for this?

A

-

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