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Law Paper 2 > Negligence > Flashcards

Negligence Flashcards

1
Q

Who defined Negligence and in what case?

A

Baron Alderson in Blyth v Birmingham Waterworks co.

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2
Q

What did Baron Alderson define Negligence as?

A

“failing to do something which a reasonable man would do or doing something that the reasonable man would not do”

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3
Q

What is proving Negligence?

A

Proving that the defendant is at fault and has caused damage to the claimant.

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4
Q

What are the 3 components that must be established in Negligence?

A
  1. Duty of Care (DOC)
  2. Breach
  3. Damage
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5
Q

Where is the standard + burden of proof in Negligence?

A

Standard of proof “on the balance of probabilities”

Burden of proof is on the claimant.

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6
Q

What is the key case for DOC?

A

Donoghue v Stevenson.

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7
Q

What principle did Donoghue v Stevenson introduce?

A

The Neighbour Principle.

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8
Q

What did Lord Atkin say about what the ‘Neighbour Principle’ is?

A

“You must take reasonable care to avoid acts or omissions… foresee … injure your neighbour.”

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9
Q

Who did Lord Atkin define your neighbour to be?

A

“persons who are so closely and directly affected by my act ….. in contemplation.”

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10
Q

What is a test for testing DOC + what case is it from?

A

Caparo test from Caparo V Dickman.

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11
Q

When does the Caparo test apply?

A

NOVEL aka new situations.

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12
Q

Which case supports the idea that Caparo test must be used for NOVEL scenarios only?

A

Robinson v Chief Constable.

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13
Q

What is the DOC test (3 elements)?

A
  1. Was the damage or harm reasonably foreseeable?
  2. There was sufficient proximity between the parties.
  3. It is fair, just and reasonable to impose liability on that defendant.
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14
Q

How is foreseeability tested?

A

Objective test.
Would a REASONABLE PERSON in the D’s position have FORESEEN that someone in the claimant’s position might be injured?

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15
Q

What is a case example for foreseeability?

A

Kent v Griffiths.

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16
Q

What was the outcome of Kent v Griffiths (DOC)?

A

Was reasonably foreseeable that C would suffer further illness.
A duty was owed by the ambulance service to the claimant.

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17
Q

What is proximity (DOC)?

A

Closeness + By time and space or relationship - relationship will only be relevant if they are not in the same place at the same time.

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18
Q

Which is a case example for proximity for DOC?

A

McLoughlin v O’Brien.

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19
Q

What briefly happened in McLoughlin v O’Brien?

A

C saw her family in hospital before they had been treated.
As a result, she suffered shock and depression.
Claimed against D and the HoL decided that D owed her a duty of care.

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20
Q

What is a case example where there wasn’t any proximity for DOC?

A

Bourhill v Young.

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21
Q

What was the result of Bourhill v Young?

A

HoL decided that the D could not anticipate that if he was involved in an accident, it would cause mental injury to a bystander.

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22
Q

What are the differences between Bourhill v Young and McLoughlin v O’Brien?

A

Bourhill could allow too many future claims.
McLoughlin is limited to family members and a restricted timeframe.

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23
Q

How is reasonableness decided?

A

Decided if it’s fair, just and reasonable to impose a duty of care?

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24
Q

What is a case example where a DOC was NOT reasonable?

A

Hill v Chief Constable.

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25
What was the result of Hill v Chief Constable?
By the time of C's daughter's death the police had enough *evidence* to arrest the killer but had *failed* to do so. HoL decided that it was *not reasonable* for the police to owe a *duty* to the *general public* as knew he might strike again but not who he would kill.
26
What are the 3 parts to the Standard Of Care?
1. Objective 2. Reasonable person 3. Baron Alderson.
27
What is the 'Reasonable Man' defined as and what does it depend on?
The man on the street. Ordinary person *performing* the task *competently*. Depends on what the *task* is, could be a *competent doctor* or a *competent driver*.
28
How are Learners judged in Negligence?
Learners = judged at the standard of the *competent, more experienced* person.
29
What is a Case Example for Learners?
Nettleship v Weston (1971).
30
What happened in Nettleship v Weston?
D as given driving lessons by her neighbour. Third lesson= hit a lamppost. Post fell on the car hurting the neighbour (Nettleship).
31
How are Professionals judged in Negligence?
By the *standard of the profession* as a whole.
32
What is a case example for Professionals?
Bolam v Friern Barnet Hospital Management Committee.
33
What happened in Bolam v Friern BHMC?
C suffered broken bone from electric shock therapy. Court held that as the hospital had followed one of these courses of action that they had *not breached their duty*.
34
How are Children and Young People judged in Negligence?
Standard = of a *reasonable person of the D's age* at the time of the accident.
35
What is a case example for Children and Young People in Negligence?
Mullin v Richards.
36
What happened in Mullin v Richards?
The court decided that D had met the standard of a reasonably competent schoolgirl and that there was no breach.
37
What risk factors increase/decrease the standard of care?
Special characteristics of C, size of risk, if appropriate precautions been taken, if risks = known about at the time of the accident, if public benefit to taking the risk.
38
What is a case example for Special Characteristics + what was the ruling?
Paris v Stepney BC (1951). Higher standard of care because the risk of injury to his remaining eye would be worse than the average person.
39
What is a case example for LOW risk + what was the ruling?
Bolton v Stone (1951). Cricket ball hit a passer-by outside a cricket ground. No breach.
40
What is a case example for HIGH risk + what was the ruling?
Haley v London Electricity Board. C was blind + fell into trench. Known that road was used by blind people so greater precautions should have been taken.
41
How is 'appropriate precautions' being taken measured?
Courts consider the balance of level of risk vs cost of taking adequate precautions.
42
What is a case example for precautions being taken and what was the ruling?
Latimer v AEC (1953). One worker slipped and was injured. No breach: reasonable steps had been taken no need to eliminate every possible risk.
43
Why are 'risks being known at the time of the accident' important?
If the risks of harm couldn't be known then there is no breach.
44
What is a case example for risks being known at the time of the accident? And what was the ruling?
Roe v Minister of Health. Not known that invisible cracks could make anaesthetic contaminated. C was paralysed. No breach.
45
How could there be a Public Benefit to taking the risk?
If there is an *emergency* then *greater risks* can be taken. Sometimes speedy action is needed.
46
What is a case example for Public Benefit in Negligence? And what was the ruling?
Watt v Hertfordshire CC (1954). No breach as the need to save life outweighed the need to take precautions.
47
How is the Damage element established?
Must prove that the damage suffered was as a *result* of the breach *(factual)* AND that the damage is *not too remote* *(legal)*.
48
What is a Negligence case example for the BUT FOR test?
Barnett v Chelsea and Kensington HMC.
49
What was the outcome/ruling for Barnett v Chelsea and Kensington HMC?
But for test *not satisfied*. Doctor = NOT liable, even though she breached her duty this didn't cause any harm - too late to save the C.
50
What are the factors to consider for Legal Causation in Negligence?
Intervening events, remoteness of damage, the *egg-shell skull rule*.
51
What are Intervening acts in Negligence/what do they consider?
Intervening acts can *break* the *chain of causation*. Considers what the *real cause* of *injury/ damage* is. Considers whether the *injury/ damage* was a *foreseeable consequence* of the act or omission.
52
What is Remoteness of Damage in Negligence?
The damage must *not* be too far *removed* from the act/ omission of the D.
53
What is a case example for Remoteness of Damage?
The Wagon Mound Case.
54
What was the ruling/outcome of the Wagon Mound case?
*Not liable* because the type of damage was *unforeseeable*. *Foreseeable* that the oil itself could *damage* the wharf but NOT that there would be a fire.
55
How is the type of damage being foreseeable tested?
So long as the *type of damage* caused is *foreseeable*, the exact way in which it *occurred* does not need to be.
56
What is a case example for the type of damage being foreseeable?
Hughes v Lord Advocate.
57
What was the outcome/ruling of Hughes v Lord Advocate?
Type of damage was foreseeable even though extreme.
58
What is a case example for the type of damage NOT being foreseeable?
Doughty v Turner Asbestos.
59
What is the 'Eggshell Skull Rule'?
If the type of injury/ harm is *reasonably foreseeable* but is much *worse* for the individual concerned then D will still be liable. Known as the thin skull rule when used in criminal law.
60
What is a case example for the Eggshell Skull Rule?
Smith v Leech Brain and Co (1962).
61
What happened + what was the outcome of Smith v Leech Brain and Co?
C had an existing pre-cancerous condition. Burn eventually brought on the *onset of full cancer* and C dies. His widow *sued* and C were found *liable*.
62
What is Res Ipsa Loquitur?
'The thing speaks for itself' Where it is *obvious* that D has been negligent but it is difficult for *C to know exactly how*.
63
What does C have to show for Res Ipsa Loquitur?
C has to show that: 1) D was in *control of the situation* which caused the injury 2) The *accident* wouldn't have happened unless *someone was negligent* 3) There is no other explanation for the injury.
64
What is case example of Scott v London and St Katherine?
Elements of *res ipsa loquitur* were present. Ds were *liable* as they couldn't show that they had not been *negligent*.

Law Paper 2 (12 decks)

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