Law-Liability in Negligence (AS) Flashcards
What is negligence?
An area of the law of tort
What is tort?
A french word which means wrong. It is a civil wrong other than a break of contract or breach of trust
What is the purpose of the law of tort?
To provide remedies when one person has been affected by another’s acts or omissions and the law considers that a remedy should be available
What is the most usual remedy?
Damages (financial compensation)
What three elements does negligence require?
A duty of care being owed to the claimant by the defendant, that duty of care being broken as required standard of care hasn’t been reached by defendant, and that broken duty must have caused the loss complained of and the loss must not be too remote a consequence
What are these three elements simply known as?
Duty, breach and damage
What is civil law concerned with?
Settling disputes between individuals, individuals’ businesses and, sometimes, the Government
What is the key difference between civil and criminal law?
Civil law is primarily designed to settle disputes, not punish wrongdoing
How is a civil case started?
By the person who has suffered the loss (claimant) as the result of a wrong which only directly affects him or her
What is a typical negligence case?
A claim for losses and injuries resulting from a car crash
What does a negligence claim require?
Proof that the defendant was negligent
What id the civil process?
The procedure by which a claim makes its way through the court system, so the court can decide whether the claim will succeed, and if so, what amount of damages should be awarded
What is the process designed to do?
Although it can be long and complicated for the claimant and defendant, it is designed to keep delay to the minimum through case management
What happens once a person is advised?
They are likely to have a good claim in negligence, the major consideration is to obtain sufficient evidence of the losses suffered
What does the length and complexity of the process depend on?
Nature of injuries, whether the evidence is clear, and whether and how the defendant makes his defence and tries to establish that he has not been negligent
What is civil evidence?
Rules that set out how the facts of a civil case must be proved, and the degree of certainty required
What is burden of proof?
The obligation on a party to establish the facts in issue in a case to the required degree of certainty (standard of proof) in order to prove their case
In a civil trial, who is the burden upon?
The claimant to prove the liability of the defendant
What is the standard of proof in civil law?
On a balance of probabilities. This is lower standard than in criminal cases
How has the balance of probabilities been defined?
As ‘more likely than not’, or ‘51%’-effectively the matter of convincing the judge that the claimant is right in their version of events
Who gave the famous definition of negligence?
Baron Anderson, in Blyth v Birmingham Waterworks Co. 1856
What was the definition of negligence given by Baron Anderson
The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do
What would a reasonable man do?
Try and fulfil his duties to other people. This would include a duty of care owed to others
What is a duty of care?
A duty to take care of others or to look out for them
What case tried to define duty of care, or how it is owed?
Donoghue v Stevenson 1932
What happened in Donoghue v Stevenson 1932?
Snail in the ginger beer case, resulting in the House of Lords saying that manufacturers owe a duty of care to the consumer of their products-“not to harm them by consumption of their products”. Created the neighbour principle
What is the neighbour principle based on?
The command in the Bible to ‘love thy neighbour’-Lord Atkin used this as his starting point
What did the neighbour principle therefore allow?
Liability without a contract and gave the opportunity for the law to develop the rules of negligence
Where does the latest test for duty of care come from?
Caparo v Dickman 1990
What happened in Caparo v Dickman 1990?
Involved a claim by an investor who had lost money in a company and claimed against the auditors of the company as they had produced inaccurate accounts
What did the court decide based on the Caparo v Dickman case?
That the law should develop new categories of negligence incrementally and by analogy with established categories of negligence. This means the court would first look at existing precedents and if none could be found or adapted to fit the case, then a general test would be applied to see whether a duty of care should exist
What is the three part test set in Caparo v Dickman 1990?
Foreseeability, proximity and fair/just/reasonable to impose liability on defendant. All parts must be satisfied if there is to be duty of care owed by defendant to claimant, and each part must be looked at in turn
What is foreseeability?
Ab objective test: would a reasonable person in the defendant’s position have foreseen that someone in the claimant’s position might be injured?
How is there foresight in Donoghue v Stevenson 1932?
Can be seen that failing to stop a snail getting into a bottle will affect the consumer of the contents. This is a consequence of producing food that has foreign bodies in it, and a reasonable person in the defendant’s position would foresee that the claimant might be injured
What other case would this apply to by analogy?
Smedleys v Breed 1974 where a caterpillar was found in a tin of pees. If the consumer hadn’t seen it and eaten it, then become is, there would be a similar claim to the one in Donoghue v Stevenson
What is a good case example for foresight?
Kent v Griffiths 2000
What happened in Kent v Griffiths 2000?
It was decided that the ambulance service owed a duty of care to a member of the public on whose behalf a 999 call was made. This was because it was reasonably foreseeable that a person in the claimant’s position would be further injured if the ambulance failed to arrive or took too long to arrive
What is proximity?
It means closeness, and this can be by spcae, time or relationship
What is a case example for proximity?
Bourhill v Young 1943
What happened in Bourhill v Young 1943?
Claimant got off tram and heard a motorcycle go past and then heard a collision. She didn’t see it and was in a safe place away from it, but then decided to see what happened and saw the dead motorcyclist and aftermath. She suffered shock from the sight and claimed that that caused her miscarriage. The defendant didn’t owe a duty of care as she was in a safe place and hadn’t seen the accident but went to see it voluntarily. There was no proximity in space
What would have happened if the claimant had been related to the victim/defendant?
Eg McLoughlin v O’Brien where the wife was informed of a serious accident involving her husband and children. She wasn’t near the accident at the time but suffered shock after going to the hospital and seeing her husband in pain/distress, her seriously ill children and one child who had died. The accident owed a duty of care as there was proximity of relationship
Why is there normally little issue of proximity?
Because the victim is usually part of the event
What is reasonableness?
Whether it is fair, just and reasonable to impose a duty of care-a matter of public policy
What is an example for reasonableness?
MPC v Reeves 2001
What happened in MPC v Reeves 2001
Police took a man into custody who was also known to be at risk of committing suicide. Whilst in custody, he hanged himself in his cell and the police were found to have owed him a duty of care (they owe a duty of care in some circumstances eg when taking people into custody)
What is an example of a case that failed at the third stage of the three part test (Reasonableness)?
Hills v Chief Constable of West Yorkshire 1988
What happened in Hills v Chief Constable of West Yorkshire 1988?
House of Lords refused to impose a duty of care on the police to the mother of the Yorkshire Ripper’s last victim. Court found no duty of care to potential victims of the crime and the police need to be able to work without undue worry of legal action in negligence against them
What test is used to decide whether there is a breach of duty?
Whether the defendant behaved as a prudent and reasonable person would have (concept of the ‘reasonable man’)
When was the reasonable man principle set out?
In Blyth v Birmingham Waterworks Co 1856-if the defendants behaviour falls below the standard of the reasonable person then they are in breach of duty
What cases can be used to discuss the reasonable man?
Nettleship v Westin 1971, Wells v Cooper 1954, Mullins v Richards 1998, and Bolam v Friern Hospital Management Committee 1957
What happened in Nettleship v Western 1971?
Case example for inexperience, where a learner driver on third lesson in car without dual control and no professional instructor hit a lamppost and the instructor was injured. It was decided that the standard of care expected of a learner driver is the same as that of any driver
What happened in Wells v Cooper 1954?
Claimant fell down steps after a new door handle fitted by an expectedly competent person, the handle fell off as he went to shut the door in heavy winds. It was decided that the standard of care required is of the reasonably competent person doing the job in question, the man doing DIY was expected to reach the standard of a reasonable competent professional doing the job
What happened in Mullins v Richards 1998?
Two 15 year old schoolgirls were fighting with plastic rulers, one snapper and a splinter went into one of their eyes causing blindness. The girl was only expected to meet the standard of a reasonable 15 year old school girl, not that of a reasonable man so she was not found to be in breach of duty
What happened in Bolan v Friern Hospital 1957?
Case example for industry norm standards being followed. Claimant suffered mental illness and was advised electro-convulsive therapy and signed consent form but wasn’t warned of risk of breaking a bone whilst strapped down and shocked. He broke a bone in second therapy and hospital hadn’t used relaxant drugs that would have reduced the risk. Some say they were used in general practice and others argued there was no particular reason to use them in his case. Standard of a professional is judged by standard of the profession. In this case, following either of two accepted medical methods was said to be acceptable in reaching standard of care expected
What are the factors to decide whether a person has acted reasonably?
Magnitude of risk, have all practical precautions been taken, and the greater good (are there benefits of taking the risk)
What is a case for magnitude of risk?
Bolton v Stone 1951
What happened in Bolton v Stone 1951?
During a cricket match, a ball hit a person standing outside her house on a road outside the grounds, over a five meter high protective fence. Cricket ground had been used for 90 years and no one outside it had been injured previously. No duty of care was broken as the risk of injury to a person by a ball outside the grounds was so small that the probability of it happening would not be anticipated by a reasonable man
What is a case for practical precautions?
Latimer v AEC 1953
What happened in Latimer v AEC 1953?
Defendants factory flooded after heaver rainstorm. Water mixed with oil and made floor slippery so warning signs were put up and message was passed round workplace, and sand and sawdust were used to dry the floor but the claimant slipped and was injured. Defendant owed a duty of care to employees but hadn’t breached it as all reasonable practical precautions had been taken in the circumstances of the accident
What is a case for the greater good?
Watts v HCC 1954?
What happened in Watts v HCC 1954?
Firefighters injured by lifting gear when travelling in a vehicle not specifically fitted for carrying the gear because the right vehicle was already in use. The vehicle however crushed a firefighter. The benefits of saving a woman’s life outweighed the risk of injury to a firefighter when using the best, but unsuitable vehicle in an emergency so the duty of care owed by the council to the firefighters hadn’t been breached
What is looked at after it has been established that there was a breach in duty of care?
Was the loss foreseeable
What factors are looked at for foreseeable loss?
causation in fact, foreseeability of loss, and the thin skull rule
What is causation in fact?
The but for test, ‘but for the defendant’s negligence, would the damage have occurred?’
What is a case for causation in fact?
Barnett v Chelsea hospital 1969
What happened in Barnett v Chelsea hospital 1969?
Barnett came to hospital with stomach pains, the casualty officer didn’t examine him which would have been unusual in practice, and sent him home but he died five hours later. There was no causation in fact as the hospital couldn’t have done anything to save his life, cause of death was the original poisoning, not the failure to examine him properly
What is a case where the loss was foreseeable?
Hughes v Lord Advocate
What happened in Hughes v Lord Advocate?
Boys took paraffin warning lamp down unattended open manhole and knocked it back in the hole when exiting, causing an explosion and burns which was foreseeable.. As long as the type of damage is reasonably foreseeable, it doesn’t matter if it occurred in an unforeseeable way. So its foreseeable that the unattended lamps would cause burns but doesn’t matter that it isn’t foreseeable that the burns would be due to an explosion
What is a case where the loss was not foreseeable?
Overseas Tankship UK v Morts Dock and Co Ltd (the wagon mound)
What happened in the wagon mound case?
Oil spilt while refuelling ship caused a fire on the claimants wharf which was a distance away and being repaired. The spilt oil ignited the molten metal on floating cotton waste. Damage by the spilt oil was foreseeable, but the damage by fire wasn’t foreseeable and so was too remote
What is the thin skull rule?
Also known as the eggshell rule, is to take your victim as you find him
What is a case for the think skull rule?
Smith v Leech Brain and Co
What happened in Smith v Leech Brain and Co?
Claimant had a pre-cancerous condition. He was splashed on the lip by molten metal. The burn turned into cancer as a result of his condition and his claim succeeded. A person’s liability in negligence isn’t extinguished or lessened because the claimant had a pre-existing condition that made the injuries worse
