Exam Revision Flashcards
Benjamin Cardozo
I sought certainty. I was oppressed and disheartened when I found that the quest for it was futile
Torts are…
Civil wrongs for which the law will provide a remedy. They will be enforceable against one party, to the benefit of another
Peter Cane
Tort law is purely protective, does not lay down rules
Negligence elements
Doc
Breach
Causation
Damage
Remoteness
Defences
Urbanaski v Patel
Surgeon removed patients only kidney causing death, surgeon liable to the patients father who donated his own kidney to save her life
Watson v British Boxing Board of Control
BBBC had a duty to be proactive - Lord Phillips
Caparo test
Lord Bridge’s 3 requirements
1. Reasonably foreseeable harm
2. Proximity
3. Fair, just and reasonable
Lord Reed’s approach in Robinson
Courts will follow precedents in established categories, only relying on the caparo test in novel cases
Relevant considerations: cost of taking care
Latimer
Relevant considerations: gravity of harm
Paris v Stephney
Relevant considerations: probability of harm
Read v Lyons
Factual causation
But for test - Barnett v Chelsea and Kensington
Legal causation
Real, direct or effective cause - Stapley v Gypsum Mines
The principle of de minimus non curat lex
The law does not take account of inconsequential or trifling harms
Remoteness
A line between recoverable and irrecoverable loss
Oversees tankship
Damage must be a reasonably foreseeable type
Lord Atkins in Donoghue
Neighbour Principle “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”
John Fleming on Lord Atkins neighbour principle
‘A sacrosanct preamble to any judicial disquisition on duty’
- contains noticable ambiguity
Lord Oliver in Caparo on proximity
-‘Proximity is no more than a label’
-Proximity is not a ‘definable concept’
-Proximity is used pragmatically by judges
Incremental development
“That the law should develop novel categories incrementally and by analogy with established categories - Brennan J, Sutherland shire council v Heyman
Guido Calabresi
‘Accident costs are less burdensome when spread across the community’
Dangers of pro-claimant approach to proof of causation
Insurance premiums will rise if it’s easier for claimants to bring a case, causes a social issue in an effort to help claimants
Lord Toulson in Michael’s case
“The common law does not generally impose liability for pure omissions”
A person who didn’t create the danger will not be liable for omitting to help unless…
-assumed responsibility
-special level of control over the source of danger
-A’s status creates an obligation to protect V from that danger - Robinson
Lord Keith in Hill
Police are liable “like anyone else” in tort for their acts and omissions
Unreasonable interference
‘Any activity causing or state of affairs causing a substantial and unreasonable interference with C’s land or C’s use and enjoyment of that land’
Lord Westbury’s distinction in private nuisance
If effects comfort = balancing act
If substantial interference = more straightforward and likely to award damages
Bamford v Turnley
Private nuisance is “a rule of give and take, live and let live”
Theisiger in Sturges
“What would be a nuisance in Belgrave Square would not necessarily be so in Bermensey”
Malice = intentional annoyance
Christie v Davey - noisy on purpose “only for the purpose of annoyance”
Hollywood silver fox farm - fired a gun intentionally to scare the foxes
Ryland and Fletcher elements
-accumulation
-non natural use
-escape
-damage
-remoteness
-defences
Benning v Wong
“The whole point of Rylands is that the exercise of care is irrelevant”
Accumulation in Rylands
The accumulation must be voluntary
Bingham in Transco
Non natural use of the land has to be extraordinary and unusual
Defences to Rylands
Act of god ‘Nichols’
Unforeseeable act of a third party - Rickards v Lothian
Consent - Cory Brothers
Necessity - Rigby
Statutory authority
Lord Hoffman in Transco
Rylands rule will not protect from fire damage, “make sure you have insurance”
Defences to private nuisance
Prescription - Sturges v Bridgman
Statutory authority - Allen v Gulf oil
Partial defence of contributory negligence - Trevett v Lee
Lord Scarman - a judicial disagreement in McLoughlin v Obrien
Scarman - judges should always base their decision on principle
Lord Edmund Davies: a judicial disagreement in McLoughlin v Obrien
Davies - found Scarman’s view novek and startling. Emphasised that judges regularly ground their decisions in policy
Negligence elements
- The defendant owed the claimant a doc
- The duty has been breached: D was negligent
- The defendant’s breach of duty has caused the claimant to suffer loss or damage of a relevant sort
- That damage is caused in law by the defendant’s negligence/is not too remote/is within scooe of the duty
Lord Reed in Dorset Yacht
The neighbour principle ought to apply unless there is some justification or valid explanation for it’s exclusion
Australian ‘salient features’ approach
Australian HC abandoned caparo test, adopted salient features approach. It addresses matters of principle before it turns to policy considerations. -Sullivan v Moody
Kirby J’s critique of the ‘salient features approach to DOC
- lacks clarity
Purpose of the compensation act 2006, s1
To address the percieved problem of blame culture by considering whether imposing a duty will stop people from doing a desirable thing
Bolam v Friern Hospital
“A doctor is not guilty of negligence if he acts in accordance with accepted medical practice”
Novus Actus Interveniens
A break in the causal chain
Lord Wright, a NAI is something unwarrantable
Hart and Honore on NAI
Described the doctrine as ‘cloudy’
Criticised the heavy use of metaphor e.g. ‘causal chain’ when judges and lawyers discuss the doctrine
Liability for the conduct of third parties
Dorset Yacht - it must be ‘very likely to happen’
Lamb ‘ a degree of likelihood amounting to almost inevitable
McGhee
C must show that D breached the duty owed and materially increased the risk to which C was exposed
Barker v Corus (placing a restriction on fairchild)
The extent of liability is confined to the extent to which D materially increased the risk to which C was exposed
The compensation act 2006, s3(1)
The mesothelioma amendment
The responsible person is liable for all relevant harm even if C was exposed to asbestos by others. Means c does not have to sue each careless employer
Sienkiewicz, what constitutes a material increase in risk?
“Material” excludes insignificant risk
American approach to asbestos exposure
Market share liability - Sindell v Abott
Each manufacturer held liable for the proportion of C’s injury that they owned shares of in the free market
Snell v Farrell (canadian)
The US medical crisis of the 70s; inflated insurance premiums due to lots of claims
