Liability in negligence Flashcards
Personal injury and damage to property
Caparo v Dickman (1990) established what test?
The three part test
What are the three parts to the three-part test established in Caparo v Dickman (1990)?
1) Was damage or harm reasonably foreseeable?
2) Proximity of relationship
3) Fair, just and reasonable to impose a duty?
What case established the three-part test?
Caparo v Dickman (1990)
What are the facts of Caparo v Dickman (1990)
The C company wanted to take over another company and looked at the statutory accounts and based on that made the purchase but then discovered the detailed books revealed a loss.
Definition of the three-part test
To show who is owed a duty of care in negligence. All three parts must be satisfied.
What is the case for damage or harm reasonably foreseeable?
Kent v Griffiths (2000)
What principle did Kent v Griffiths (2000) establish?
Damage or harm reasonably foreseeable
The facts of Kent v Griffiths (2000)
An ambulance did not arrive to receive C in a reasonable time-it was reasonably foreseeable that C would suffer further injury if ambulance was late.
What is the case for proximity of relationship in which a relationship was not established and therefore no duty of care was owed?
Bourhill v Young (1943)
What principle does the case of Bourhill v Young (1943) support?
Proximity of relationship-(no duty of care was owed in this case-insufficient proximity)
What principle does the case of McLoughlin v O’Brien (1982) support?
Proximity of relationship-(Duty of care was owed in this case)
What case supports the principle of proximity of relationship in which the a duty of care was owed?
McLoughlin v O’Brien (1982)
What are the facts of Bourhill v Young (1943)
Woman witnessed motorbike accident of a stranger and gave birth to a stillborn from shock-no proximity of relationship and therefore no duty of care owed.
What are the facts of McLoughlin v O’Brien (1982)
Claimant’s husband and children involved in road accident and she suffered psychological injury when witnessing their treatment-proximity of relationship was established and duty of care was found.
What case supports the principle of fair, just and reasonable to impose a duty?
Hill v CC of West Yorkshire (1990)
What principle does the case of Hill v CC of West Yorkshire (1990) support?
Fair, just and reasonable to impose a duty.
What are the facts of Hill v CC West Yorkshire (1990)
C was a relative of Yorkshire ripper’s last victim and tried to sue for damages but was unsuccessful-not fair, just or reasonable to impose a duty.
Definition of the reasonable person
Considered to be the ordinary person in the street or doing a task.
Professionals are judged by the standard of the profession as a whole. What is the case to illustrate this?
Bolam v FB Hospital (1957)
What are the facts for Bolam v FB Hospital (1957) and what principle did it establish?
Facts: C was suffering mental illness and given electric shock therapy. C was not given muscle relaxants.
1 SOP was to use relaxants in every procedure. The other SOP was that drugs should be used only if needed.
Principle: That professionals are judged by the standard of their profession as a whole.
Learners are judged by the standard of the competent, more experienced person. What is the example case for this principle?
Nettleship v Weston (1971)
What principle did Nettleship v Wetson (1971) establish?
That learners are judged by the standard of the competent more experienced person.
What are the facts of the case of Nettleship v Weston (1971)?
Student on driving lesson made error in driving and injured her instructor (the claimant).
Children and young people are judged by the standard of someone at their age-what is the example case for this principle?
Mullin v Richards (1998)
What are the facts of Mullin v Richards (1998)
Two 15 year olds play fighting with plastic rulers which broke and fragments entered claimant’s eye. D did not owe duty of care.
What principle did the case of Mullin v Richards (1998) establish?
That children and young people are judged by the standard of someone at their age.
Name 5 risk factors that may be considered to lower or raise the standard of care.
1) Special characteristics? (Paris v Stepney Borough Council 1951)
2) Size of the risk? (Bolton v Stone) (Haley v London Electric)
3) Have all appropriate precautions been taken? (Latimer v AEC Ltd 1953)
4) Unknown risks? Roe v Minister of Health (1954)
5) Public benefit to taking the risk? (Watt v Hertfordshire County Council 1954)
What case established the principle of special characteristics when determining the standard of care?
Paris v Stepney Borough Council (1951)
What are the facts of the Paris v Stepney Borough Council (1951) case and what principle did it establish?
Facts: C had special characteristics-being blind in one eye-employers did not provide eye-pro. Defendants fund to owe duty of care.
Principle: Does the claimant have special characteristics that might affect the standard of care owed?
What two cases established the principle of ‘what is the size of the risk?’ when determining the standard of care?
1) Bolton v Stone (1951)-Cricket ball hits passer-by.
2) Haley v London Electricity Board (1965)-Blind person falls in trench made by D.
What are the facts of the Bolton v Stone (1951) case and what principle did it establish in determining the standard of care owed?
Facts: Cricket ball hits passer by-however there was a low risk of injury and the Cricket Club did everything it could to prevent injury-no duty of care owed.
Principle: What is the size of the risk?
What are the facts of the Haley v London Electricity Board (1965) and what principle did it establish with regards to the standard of care owed?
Facts: Blind person falls in trench made by workers-risk should have been realised as blind people frequent the area.
Principle: What is the size of the risk?
What case established the principle of ‘have all appropriate precautions been taken?’ with regards to the standard of care owed?
Latimer v AEC Ltd (1953)
What are the facts of the Latimer v AEC Ltd (1953) case and what principle did it establish regarding the standard of care?
Facts: Slippery factory floor was cleaned with sawdust-work continued-worker slipped-employers not liable because the only other option was closure of factory.
Principle: Have all appropriate precautions been taken?
What case established the principle of ‘were the risks known about at the time of the accident?’ regarding the standard of care owed?
Roe v Minister of Health (1954)
What are the facts of the Roe v Minister of Health (1954) case and what principle does it establish regarding the standard of care owed?
Facts: It was common practice to soak anaesthetic tubes in cleaner. Tubes developed micro cracks that contaminated anaesthetic-patient injured-hospital not liable as risk unknown at the time.
Principle: Were the risks known about at the time of the accident?
What two cases established the principle of ‘is there a public benefit to taking the risk?’ regarding the standard of care owed?
1) Watt v Hertfordshire County Council (1954)-Fireman injured using only available equipment.
2) Day v High Performance Sports (2003)-Climber who was rescued inappropriately due to an emergency.
The definition of damage (not damages).
Has the defendant’s breach of duty led to the injury or property damage suffered by the claimant?
What are the two parts that make up damage (not damages)?
1) Factual
2) Remoteness of damage
The definition of causation.
A link between the D’s act or omission and the injury, loss or damage caused to C.
What case demonstrates the principle of ‘factual causation’ with regards to ‘damage’?
Barnett v Chelsea Hospital (1969)
What principle does the case of Barnett v Chelsea Hospital (1969) demonstrate and what were the facts?
Principle: Factual causation.
Facts: 3 people reported to hospital after drinking tea. Doctor refused to see them and referred to own GP’s. One man died from arsenic poisoning-it was decided Doctor’s act did not cause the death as arsenic was already in the system.
What principle did the case of The Wagon Mound (1961) establish and what were the facts?
Principle: Remoteness of damage
Facts: Oil spill seeped into a wharf where welding being carried out-caught fire and burned wharf. No foreseeability of fire damage.
What case established the principle of ‘remoteness of damage’ with regards to ‘damage’?
The Wagon Mound (1961)
What is a ‘novus actus interveniens’?
An act to break the chain of causation.
What is the definition of ‘reasonably foreseeable’?
a result such as an injury or damage which a reasonable person could foresee being a result of their act or omission.
What are the three leading cases for ‘foreseeability’ with regards to ‘damage’?
1) Hughes v Lord Advocate (1963)-Consequence foreseeable even if cause of injury is not.
2) Bradford v Robinson rentals (1967)-Consequence foreseeable, even if more severe.
3) Doughty v Turner Asbestos (1964)-Consequence not known so injury not foreseeable
What is the leading case for the ‘eggshell skull rule’ A.K.A. ‘take your victim as you find them’ with regards to ‘damage’?
Smith v Leech Brain and Co. (1962)
What are the facts of the Smith v Leech Brain and Co. (1962) case and what principle did it establish?
Facts: Claimants husband had pre-cancerous condition and developed cancer as a result of a foreseeable burn caused by the defendant.
Principle: ‘Eggshell skull rule’ A.K.A. ‘tale your victim as you find him’.
What is the rule of ‘res ipsa loquitor’?
‘The thing speaks for itself’
What three aspects does the claimant have to show to use the rule of ‘res ipsa loquitor’?
1) Defendant was in control of the situation.
2) The accident would not have happened unless someone was negligent.
3) No other explanation for the injury.
What is the supporting case for ‘res ipsa loquitor’?
Scott v London and St. Katherine Docks (1865)
What are the facts of the Scott v London and St Katherine Docks (1865) and what rule does it support?
Rule: ‘res ipsa loquitor’
Facts: C injured by falling bags from warehouse owned by D. C did not know circumstances but 1) D controlled the warehouse 2) sacks must have fallen negligently 3) no explanation for sacks to fall.
in the absence of any proof otherwise, D was found to be liable.
Which two acts place restrictions on the use of consent as a defence?
s149 Road Traffic Act (1988)
Unfair Contract Terms Act (1977)-business premises
What does the Unfair Contract Terms Act (1977) place restrictions on regarding liability in negligence?
Businesses from limiting liability when injury occurs on business premises.
Businesses from limiting liability when injury occurs on business premises.
Which act provides restricts this?
Unfair Contracts Term Act (1977)
Which act puts restrictions on the use of consent as a defence to a negligence claim in the event of a road traffic accident?
Road Traffic Act (1988)
What case established the neighbour principle?
Donoghue v Stevenson (1932)
Facts: Ginger beer bottle with slug in. Product manufacturer liable.
Donoghue v Stevenson (1932)
Significance: established the ‘neighbour principle’.
Facts: Ginger beer bottle with slug in. Product manufacturer liable.
What is meant by ‘volenti non fit unjuria’?
It is a full defence when the claimant voluntarily accepts a risk.
It is a full defence when the claimant voluntarily accepts a risk.
What is this referring to?
volenti non fit injuria
What case is an example of volenti succeeding?
ICI Ltd. v Shatwell (1965)
Facts: C and brother were quarry workers and C followed brother’s advice about ignoring the employer’s instructions on handling detonators-when he was injured the D succeeded in a defence of volenti as C had assumed the risk of injury.
ICI Ltd.v Shatwell (1965)
An example of a successful defence of volenti.
Facts: C and brother were quarry workers and C followed brother’s advice about ignoring the employer’s instructions on handling detonators-when he was injured the D succeeded in a defence of volenti as C had assumed the risk of injury.
What test decides ‘factual causation’?
The ‘but for’ test
What case gave the definition of negligence?
Blythe v Birmingham Waterworks Co (1856)
Facts: Water works blocked fire hydrant that leaked onto C’s property.
Blythe v Birmingham Waterworks Co (1856)
Gives the definition of negligence.
Facts: Water works blocked fire hydrant that leaked onto C’s property.
What case established the ‘neighbour principle’?
Donoghue v Stevenson (1932)
Facts: The Paisley Snail-snail in a bottle that was bought for a woman by a friend.
Donoghue v Stevenson (1932)
‘Neighbour principle’
Facts: The Paisley Snail-snail in a bottle that was bought for a woman by a friend.
What replaced the ‘neighbour principle’?
The three part test from Caparo v Dickman (1990)
The three part test replaced which legal principle?
The neighbour principle.
The standard of care is objective or subjective?
Objective
That of the reasonable person.
The reasonable person is subjective or objective?
Objective
What is the objective test for deciding if D broke the standard of care?
The reasonable person.
