CILEX EXAM Flashcards
Define Negligence
The leading case for negligence can be established in Blyth V Birmingham Waterworks which assess the standard of care that an ordinary prudent person should exercised. It is based on the act or omission that the reasonable man would or would not do given they were in the same situation.
Identify two examples of common law duties of care?
Road Users to Road Users - Nettleship V Western
Manufacturer to End Consumer - Donoghue V Stevenson
What is meant by a primary victim?
As established in Page V Smith and Dihleu V White. A primary victim is someone who is within the danger zone and feared for ones own safety. They must show that it was reasonably foreseeable that someone would suffer sudden shock from the defendants negligent act.
Identify whether the court will take an objective or subjective approach when assessing the standard of care.
Objective approach.
Explain when a claimant’s own act can break the chain of causation.
A claimant’s own act can break the chain of causation which is also known as a new intervening act, this is where they have not tried to mitigate their loss or worsened their situation. As seen in Mckew V Holland, the claimant acted recklessly and the injury could have been prevented.
Identify the three requirements which must be established for an employer to be held vicariously liable.
1) a relationship of control
2) a tort has been committed
3) the act must be in course of employment
Explain the requirements to establish the defence of contributory negligence.
Essentially, the burden of proof reverses. A partial defence of contributory negligence may be available where the defendant can prove that the claimant has not taken reasonable care or tried to mitigate their loss.
The requirements are:
1) The claimant has failed to take proper steps to take care of their own safety
2) Failure to take care contributed towards their damage
This was established in FROOM V BUTCHER
What statue covers contributory negligence?
Law Reform Contributory act 1945
Explain the effect of s.65 Consumer Rights Act 2015.
A Trader can exclude liabilty for death or personal injury resulting from negligence.
Define general damages
Unquantifiable loss - None Pecuniary loss
The loss includes Pain and Suffering, Loss of amenity, loss of enjoyment. These will be calculated from the date of the trial. Also known as future expense. This loss will be estimated and will be paid in one lump sum.
Identify two statutory torts
Animals Act 1971
Consumers Right Act 1987
explain the approach suggested by the Supreme Court to ‘novel duty’ situations in Robinson v CC of W Yorkshire (2018).
1) Was the type of harm reasonable foreseeability of harm?
2) sufficient proximity, time and space, or relationship of the parties
3) Is it fair just and reasonable to impose liability?
Explain, in the context of claims for psychiatric injury, what is meant by the ‘floodgates argument’
Examples where courts recognise the ‘floodgates’ argument include claims for pure psychiatric harm and claims against public bodies such as the police. They fear if they were to impose liabilty that it could lead to fraudulent claims and deter positive behaviour. This can be seen in Hill V West Cheif Constable.
Which two cases relates to imposing liabilty on a public body?
L V Reading Borough Council and Hill V Cheif Constable,
Identify the basic standard of care expected of those who owe a duty of care
The basic standard of care can be seen in Blyth V Birmingham Waterworks. This established the reasonable mans test. It is based on the ordinary prudent person. The Act or omission that a reasonable person would or would not do given they were in the same situation.
Explain what is meant by the ‘but for’ test.
The ‘but for’ test is based on Causation of Fact. The was established in Barnet V Kensington Hospital.
But for the negligent act of the defendant, would like claimaint or party at loss still have suffered the injury or loss in question? If yes, the defendant will not be held liable. If no, the defendant will be held liable.
This is based on the balance of probabilities. ‘More probable that not’
Explain what is meant by the ‘eggshell skull rule’.
The egg shell rule was defined in smith V leech. Essentially, you take your victim as you find them. You can not use the persons vulnerability to escape liabilty.
Identify and explain the test used when the court must decide whether an intentional wrong took place within the course of employment
Control test,
Organisation test,
and Sufficient relationship test.
Identify the standard limitation period for a claim in personal injury
3 years
Identify the standard limitation period for a tort claim.
6 years
Identify the standard limitation period for a defamation claim
1 year
Identify one statute which may affect the calculation of damages in a claim where the claimant has died as a result of the negligence alleged.
Law Reform Contributory negligence act 1945
the ‘three stage test’ for establishing a novel duty of care;
1) Foreseeability of Harm
2) sufficient proximity
3) fair just and reasonable to impose liabilty
what is the three stages to establish breach of duty of care
1) Duty of Care
2) Breach of Duty
3) Causation
What does breach of duty of care mean?
Where the defendant has failed to exercise the standard of care expected from them and has now resulted in a negligent act.
what did Lord Atkin say in Donoghue V Stevenson?
Lord atkin asked “who is my neighbour” “someone who is so closely and directly affected by my actions that i ought to have them in contemplation as being so affected when directing my mind towards the act or omission in question”
Which case relates to foreseeability of harm?
Donoghue V Steveson
Which case relates to proximity?
Nettleship V Western
Hill V Chief Constable of West Yorkshire
which case relates to fair just and reasonable?
Hill V Chief Constable of West Yorkshire
L V Reading Borough Council
Which case relates to the reasonable man?
Blyth V Birmingham waterworks
which case relates to the standard of care for professional bodies?
Bolam
which case heavily scrutinised Bolam?
Bolthio
What level of standard of care is expected from a medical professional?
Where a party exercises a great skill or knowledge in a certain field/job role, the greater standard of care they should exercised. It would not be logical to hold a reasonable prudent man to the same standard of care as a medical professional, as seen in Bolam. However, a trainee will be expected to be held to the same standard of care as a qualified body. There is no reduction for liabilty.
Which case states that there is no reduction for trainee docors>
Wilsher V Essex
Which case relates to children not being held liable?
Mullins V Richard
Which case relates to inexperience drivers still being held liable?
Nettleship V Western
What are the elements of the objective test for the reasonable mans test?
1) The importance defendants objective
2) Likeihoold of harm
3) seriousness of harm
4) cost of avoiding harm (precaution)
Which case relates to the importance of the defendants objective?
If the defendants object outweigh the risk of saving someones life. WATT V HERFORDSHIRE
what case relates to the likelihood of harm?
BOLTON V STONE
it was not likley the cricket ball would injure someone
what case relates to the seriousness of harm?
Paris V Stephney
Someone who is vunerable, the greater standard of care should be exercised
what case relates to taking precautions? cost of avoiding harm
Latimer V ACE
Which case relates to secondary victims?
Alcock
What is the requirement for secondary victims?
1) Close tie of love and affection - Parent, Child, Spouse
2) Proximity of time and space, or the immediate aftermath
3) Must have suffered from a legally recognised illness such as PTSD
4) Must have suffered sudden shock - Slow appreciation does not count
5) Must have witness the incident with their own unaided senses
Which case relates to the immedate aftermath?
Mcloughin V Brian
which case relates to witnessing the incident with their own unaided senses
alcock
Which case relates to rescuers being able to claim for phsyatirc damage?
Chadwick V British railwayboard
rescuers should not be discourage to act when saving a persons life
Which case relates to the But for test
Barnet V Kensington Hospital
which case relates to damage not being too remote?
Wagonmound
the amount of damage must have been reasonable foreseeable
What three things can cause new intervening act, breaking the chain of causation.
1) Claimaints own actions
2) Act or ommision from a third party
3) Natural event as health condition
what act relates to the breaking the chain of causation with the claimaint suffering from a underlying health condition
Jobling
name two complete defences?
Volenti
Ex turpi Causa
What is volenti?
Volenti otherwise known as Consent.
The defendant must prove that the claimaint was aware of the following
1) the claimaint had 100% knowledge of the risks involved
2) the claimaint consents to the risk volentary
which case relates to volenti?
Stermer V Lawson
where might the courts not agree with using volenti as a defence?
Children - as they do not have the same appreciation for danger
Disabled person - they do not have the same appreciation for danger
Someone who is intoxicated
Rescuers - Baker V Hopkins
What does ex turpi causa mean?
A claimaint cannot recover losses if the loss they incurred was whilst they were involved in criminal activity.
what case relates to ex turpi causa
Gray V Thame Trains
What does the limiation act 1980 do?
The Limitation act 1980 limits the period of when legal action can be commenced. It would not be justified to bring a claim when both of the parties memory has faded.
what are the steps to establishing a full claim, start to finish
1) Establish a duty of care
2) Breach of duty
3) Causation
4) Defences
5) Damages
what are the two types of causation?
In fact
In Law
What is special damages?
Special damages are Pecunilary loss which can be quantified.
They are losses which have incurred from the date of the tort to the date of the trial.
this can cover loss of earning, expenses incured for hospital treatment such as prescriptions or needing a carer. These losses can be quantified.
When might the limiation act 1980 not run?
1) If the claimaint is under 18
2) a protected party who lacks to make decisions - lacks mental capacity
which two cases relates to contributory negligence
Froom V Butcher
Fitzgerald V Lane
how much was the damages reduced in fitzgerald v lane
50%
What types of claim can be made if the claimant dies?
Law reform miscellanous act 1934
Dependents or next of kin
Fatal Accidents Act 1976
how much can you recover in damages from Fatal Accidents Act 1976
£12980
S3 Compensation Act 2006
If a claim for damages for mesothelioma is made as a result of asbestos contact, employer is jointly and severally responsible if they materially increase risk of exposure = any 1 employer can be liable for whole of damages even if their contribution was small
Describe the effects/functions of the
law of tort
Normative rules, compensation, retribution
what does • s.1 Compensation Act 2006 state
consider implications of awarding
compensation, e.g. prevent a desirable
activity from being undertaken.
