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Law > Negligence > Flashcards

Negligence Flashcards

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1
Q

Duty of care definition

A

Donoghue c stevenson

Neighbour principle

We owe a duty of care to persons who are so closely and directly affected by my act that i ought reasonably to have in my contemplation

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2
Q

Duty of care 3 part test

A

Caparo v dickman

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3
Q

Caparo v dickman 1

A

It was reasonably foreseeable that a person in c’s position would be injured

Kent v griffiths

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4
Q

Caparo v dickman 2

A

There was sufficient proximity between the parties

Can be space, time or relationship

Bourhill v young

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5
Q

Caparo v dickman 3

A

Is it fair, just and reasonable to impose liability on d. Courts consider what is best for society

  1. Courts are concerned about not opening the floodgates of litigation
    Hillsborough
  2. What is best for society if d is in a public sector
    Hills v cheif constable of west yorkshire
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6
Q

Breach of duty definition

A

Blyth v birmingham waterworks co

D breaches his duty of care by failing to reach the standard of care of the reasonable man. The reasonable man is the ordinary person performing a particular task and is expected to perform it reasonably competently

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7
Q

Types of reasonable man

A

Learner
Professional
Young people

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8
Q

Learner

A

Learners are charged at the standard of the competent more experienced person

Nettleship v weston

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9
Q

Professional

A
  1. Does the conduct fall below the standards of the ordinary competent member of that profession
  2. Is there a substantial body of opinion within the profession that would support of course taken by d

Bolom v friern barnet management committee

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10
Q

Young people

A

When D is not an adult, standard expected is of a reasonable person of ds age

Mullin v richards

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11
Q

Risk factor 1

A

Special characteristics of c

If d knows of vulnerabilities of C a higher standard of care will be expected than usual

Paris v stepney borough council

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12
Q

Risk factor 2

A

Size of risk

The lower the risk the less care needs to be taken, the greater the risk the more care needs to be taken

Bolton v stone

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13
Q

Risk factor 3

A

Have all practical precautions been taken

They will have acted reasonably if he has taken all reasonable precautions Taking reasonable cautions lowers the standards

Latimer v AEC

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14
Q

Risk factor 4

A

Benefits of taking the risk

if there is a benefit taking the risk this will be balanced with the risk.

Watt v hertfordshire county council

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15
Q

Factual causation

A

But for test

Barnett v chelsea and kensington management comittee.

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16
Q

Remoteness of damage - reasonable forseeability

A

D is only liable for damage if it is the foreseeable consequence of his breach

Wagon mound

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17
Q

Remoteness of damage - type of damage

A

D will only be liable if the type of injury was for seeable even if the precise way in which it happened was not

Bradford v robinson rentals

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18
Q

Remoteness of damage - take your claimant as you find him

A

Egg shell rule

If the type of damage is reasonably for seeable but is much more serious because C had a pre-existing condition d is liable for all the consequences

Smith v leech brain

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19
Q

Remedies, purpose of damages

A

Successful claimant can be awarded damages for injuries suffered or damage to property

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20
Q

Types of losses

A

Pecuniary

Non pecuniary

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21
Q

Pecuniary losses

A

A loss that can easily be calculated financially e.g cost of hiring a car

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22
Q

Non pecuniary losses

A

Loss that is not entirely financial e.g pain and suffering

23
Q

Special damages

A

Financial losses incurred up to the date of trial

Pecuniary loss

E.g loss of earnings up until the trial or damage to property

24
Q

General damages

A

Anything that is not easily quantifiable

Non pecuniary loss

E.g Pain and suffering, loss of amenity , future medical expenses, future loss of earnings

25
Q

Mitigation of loss

A

C is expected to migate his loss- under a duty to keep his loss to a reasonable level.

26
Q

Defences to negligence

A

Contributory negligence

Consent

27
Q

Contributory negligence definition

A

C has partly caused or contributed to his injuries. Partial defence reduces the amount of damages

Law reform act 1945- any damages awarded to c can be reduced according to the extent or level which the c has contributed to his own harm

Sawyers v harlow urban district council- partial defence only reduces damages

Jayes v IMI kynoch- can be 100% reduction

28
Q

Contributory negligence steps 1.

A

C failed to take proper care in the circumstances for their own safety

  • sometimes use - goth v thorns - a very young child cant be guilty of contributory negligence
29
Q

Contributory negligence 2.

A

C’s failure to take care was a contributory cause of the damage

  • sometimes use-
  • o’connell v jackson- damages reduced when rider of mo-ped suffered greater injuries as not wearing helmet
  • froom v butcher- damages reduced when driver of car suffered greater injuries as not wearing a seatbelt
  • stinton v stinton - damages reduced for knowingly accepting a lift from a drunk driver
30
Q

Consent (volenti non fit injuria) definition

A

Full defence, if successful c receives no damages

Where c voluntarily accepts risk of harm

S.149 road traffic act 1988- defence cannot be used for road traffic accidents

31
Q

Consent steps 1.

A

C has knowledge of the precise risk involved

  • morris v murray- c must have a full understanding of the nature of the actual risk
  • medical negligence- sidaway v governors of the bethlem royal and maudsley hospitals- consent in medical cases doesn’t require a detailed explanation of remote side effects
32
Q

Consent steps 2

A

C has exercised free choice

Smith v baker - d will not succeed where c has no choice but to accept the risk

33
Q

Consent steps 3

A

C voluntarily accepted the risk

Sports- condon v basi - participant in sporting events is taken to consent to the risk of injury which occurs in the course of the ordinary performance of the sport

34
Q

Liability for psychiatric injury

A

Severe long term mental injury

35
Q

Psychiatric injury 1. D was negligent and caused injury

A

Will have already been discussed in your answer

36
Q

Psychiatric injury 2. C has Suffered a recognised psychiatric illness

A

Must be a recognised psychiatric illness supported by medical evidence

needs to be more than me a shock or grief, must be long-term

Mental trauma/injury is too vague needs to be a registered psychiatric illness for example PTSD or depression

37
Q

PI 3. Psychiatric injury is caused by a sudden event

A

Sion v hampstead health authority- must be sudden horrifying event

38
Q

PI 4. Is c A primary or secondary victim

A

Page v smith- made a distinction between secondary and primary victims

Primary- fears for their own safety

Secondary- not directly involved and not in danger of physical harm them self

39
Q

PI 4. Categories of claimants

Only discuss if necessary

A

Rescuers- chadwick v british rail- rescuers are usually at risk themselves so classed as primary victims
White v chief constable of south yorkshire- if rescuers do not put themselves physically at risk they are secondary victims

Bystanders- mcfarlane v E E caledonia- secondary victims

Property owners- attia v british gas - primary victim

Near missers- Close to the scene of the accident and may have suffered physical injuries- primary victim

40
Q

PI 5. If c is a secondary victim, must pass alcock criteria

A

Alcock v chief constable of south yorkshire - hillsborough

Must prove all 3

  1. proximity in relationship- C had close ties of love and affection with V. Type of relationship, close in fact (evidence)
  2. Proximity in time – C suffered mental injuries at the scene of accident or in its immediate aftermath
  3. Proximity and space – C suffered shock through his/her own unaided senses, saw it with their own eyes or heard it
41
Q

PI 6. Reasonably for seeable that a person of reasonable fortitude would’ve suffered the same injury in the circumstances

A

Called the threshold test

Was they reasonably strong or was it an overreaction

42
Q

Liability for pure economic loss

A

Economic loss which is NOT caused by physical injury or damage

43
Q

Consequentual economic loss

A

When the loss happens due to physical injury or damage directly to c’s property

Do not need negligent misstatements for this

44
Q

PEL caused by negligent acts

A

General rule- spartan steel v martin and co. - pure economic loss not caused by physical injury or damage to C cannot be claimed

45
Q

Negligent misstatements

A

D gives advice or makes a statement to C and C suffers a loss relying on it

46
Q

Negligent misstatements- duty of care

A

Hedley byrne v heller and patners
- PEL Made by negligent misstatement can be claimed if there is a special relationship

Caparo v dickman- requirements of special realtionships

47
Q

Caparo v dickman 1

A

Possession of a special skill or expertise of d

Eg a recognised qualification or holding himself out as having a special skill or knowledge in relation to advice given

48
Q

Caparo v dickman 2

A

D knows it is highly likely his advice will be relied upon

49
Q

Caparo v dickman 3

A

Reliance by C on the advice which leads to economic loss

Causation

50
Q

Caparo v dickman 4

A

It is reasonable for c to rely on the advice

Social situations- chaudhury v prabhakar

51
Q

Caparo v dickman 5

A

Advice communicated directly to c

52
Q

Caparo v dickman 6

A

There is no disclaimer

53
Q

Negligent misstatements- breach

A

Did D display the care, skill and expertise that would normally be displayed by a reasonably competent advisor

54
Q

Negligent misstatement – causation and damages

A

Causation- barnett v chelsea and kensington hospital management comittee

Remoteness of damage- wagon mound

Remedies- same as normal negligence – compensatory – put C back in the same position had the negligent misstatement not been made

Law (18 decks)

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