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Public International Law > Negligence > Flashcards

Negligence Flashcards

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1
Q

Negligence is a…. Based tort

A

Conduct

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2
Q

Where does negligence steam from?

A

Donoghue v Stevenson

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3
Q

Is negligence new?

A

Yes

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4
Q

What were courts searching for at the end of the 19th century?

A

A general principle to unite those dots of liability A principle that would establish the circumstances in which someone owed a duty of care to other people

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5
Q

What was the contractual idea?

A

You are only liable if you promised to do something Outside of special relationships This posed a particular problem in donoughue v Stevenson

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6
Q

What was the general principle in donoghue and Stevenson?

A

LJ Atkins neighbour principle- you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour

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7
Q

When did liability expand until?

A

1970s

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8
Q

What were the 1900s?

A

An age of principles- atiyah

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9
Q

The general theory of contract and tort appeared from…

A

Liability based upon general principles

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10
Q

Why the fault principle and not strict liability?

A

Ideology Material factors such as a positive and humane response to victims of industrialisation

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11
Q

Why does horwitz argue we have the fault principle not strict liability?

A

To insulate industrialists from liability

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12
Q

What are the three factors of negligence?

A

the BREACH of a legal DUTY to take care RESULTING IN DAMAGE undesired by D to the C

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13
Q

Criticisms of horwitz’s theory

A

A little too neat - ignores varying attitudes of judges- was not a pendulum shift from strict to fault principle- narrow legal theorising

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14
Q

What did the end of the 19th century see?

A

Shift in the attitude to workplace injury

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15
Q

The fault element

A

If you are at fault you are liableBut what about the C who has to bear the costs of injuries?

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16
Q

The duty element

A

Why do we impose this in the first place?Situations where no duty- drowning child A control mechanism

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17
Q

Causal element

A

Damage in a necessary ingredient of negligence A causal link between Ds lack of care and Cs damage

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18
Q

What is the basic idea of negligence?

A

The fault principleWhen conduct falls below a certain level of standard, D will be required to pay the damage that causes

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19
Q

What is a breach of duty?

A

A matter of falling bellow the standard of care that the law demands

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20
Q

Is a breach simply a question of fact?

A

No…. You need legal inference

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21
Q

What is negligence judged by?

A

Reference to foresight (by what D knew or ought to have known at the time of accident)

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22
Q

Roe v ministry

A

We shouldn’t judge a 1947 situation with 1954 spectacles

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23
Q

The reasonableness standard

A

The reasonable person- negligence consists of doing something a reasonable man would not have done, or omitting to do something a reasonable man would have done

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24
Q

Brown v rolls Royce

A

The reasonable person is the average person doing what everyone commonly does

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25
Q

Nettleship v Weston

A

The objective standard is not dependent upon the particular capacities of the individual defendant

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26
Q

Roberts v rams bottom

A

Stroke at the wheel of the car-!9 excuse failing to live up to standard

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27
Q

Mansfield v weetabix

A

Lost control, but unaware of disabling condition (and could not reasonably have been aware) not liable

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28
Q

What does the objective standard include and exclude?

A

Excludes characteristics of the individual but does include children and Mansfield and the particular circumstances in which individuals find themselves

29
Q

Marshall v osmond

A

Emergencies and rescues are circumstances considered in the objective test

30
Q

Bolam test

A

Skilled man You are judged against those of the ordinary skilled man professing to exercise that skill (A) acted in accordance with practice (B) is this practice reasonable

31
Q

Maynard

A

Where there is a conflict of opinion between medical experts not open to the judge to choose between them

32
Q

Bolitho

A

Bolam test correct BUT not obliged to hold that a doctor not liable for negligence simple because some medical experts testified that doctor’s actions in line with accepted practice Courts had to satisfy that the medic experts opinion was reasonable- unlikely to be found in reasonable

33
Q

Conaghan v Mansell

A

The effect of allowing medical practitioners to define what is or is not reasonable, ‘the courts produced results whereby many severely injured patients go uncompensated’

34
Q

Defreitas v o’brien

A

Doctors are effectively setting their own standards of care

35
Q

Evaluation of medical protection

A

Assumption that medics are ‘doing good’Members of learned professionsTraditionally poor representation for claimants with insurers protecting NHS and doctorsJudges lack expertiseDanger of too much defence for the medical profession

36
Q

Sidaway

A

At the height of bolam

37
Q

Chester v afshar

A

A shift away from hard deference and critical stance taken towards clinician involved and acknowledged of importance of patients autonomy and right to self determination

38
Q

Glasgow corp v Muir

A

Because judges are deciding the reasonable standard there is of course discrepancy

39
Q

Subjective factors that effect decisions in cases

A

The judges: race, class, gender etc.

40
Q

What is reasonable depends on…

A

The perspective of the person defining reasonableness

41
Q

why is moving away from the fault principle not a bad thing?

A

Presumably the increased use of insurance means that more claims are likely to be met

42
Q

The elements of the tort of negligence

A
  1. A legal duty owed by the defendant to the claimant to take care2. A breach of duty by the defendant 3. damage to the claimant cause by the breach, which is not considered by the courts to be too remote
43
Q

What about the D raising a defence

A

May be able to raise a defence that may reduce the amount of damages

44
Q

Bolton v stone

A

Claimant hit on head outside her house with a cricket ballHeld the cricket club owed her a duty of care and had breached that duty

45
Q

Strict liability

A

You are liable without fault

46
Q

Negligence liability

A

You don’t have to prove fault

47
Q

Why did we move to a predominantly fault- based tort system in the 19th century?

A
  1. Influence of social and political thinking in the age of principles (positions of the workers changed)2. A positive response to victims of workplace injuries3. Strategic economic subsidisation of infant industries
48
Q

What are the aims of the welfare state?

A

To help people who are in need

49
Q

Why do we differentiate those who have been injured through someone else’s fault?

A

MoralityDeterrenceVindication

50
Q

Why is loss spreading

A

The insurance companies pay from others premium payments

51
Q

Must the insured pay for the uninsured?

A

NoAlthough denning disagreed

52
Q

Why does D pay?

A

Often in a better financial position

53
Q

Why do conaghan and Marshall argue that as a result of this loss spreading ‘from the very outset negligence proves paradoxical’?

A

Paradoxical- seemingly absurd Because it isn’t really the party at fault who pays- it’s the insurer

54
Q

McFarlane

A

The reasonable man is a traveller on the London Underground

55
Q

Nettleship

A

A learner driver held to the objective standard to one who has passed

56
Q

Birch v Paulson

A

D not liable for the serious injuries suffered by a drunk pedestrian who stepped in front of her car

57
Q

Philips v William whitely

A

Special skillsEar infection after piercing

58
Q

Thompson

A

Lost hearing working at a shipyard Held- could sue after 1960s when it became industry practice to provide ear protection

59
Q

Wilsher

A

DoctorHeld to the standard of a more senior position although in training(Bolam test)

60
Q

Woolridge v sumner

A

Sued after being injured photographing a horse race, reasonable to expect harmNo claim

61
Q

Foreseeability

A

The more foreseeable and injury is, the greater the possibility that the courts will find D liable for failing to take steps to avoid it

62
Q

Beckett v newalls insulation

A

The more serious the potential injury, the more likely D will be found to have fallen below the required standard of care

63
Q

Latimer v AEC

A

The lower the cost of taking precautions the more reasonable if would appear to be

64
Q

Watt v Hertfordshire

A

He standard of care is lower in an emergency situation

65
Q

The compensation act 2006

A

Enacted to address the perception of a growing compensation culture in the U.K.

66
Q

Two questions to establish breach

A
  1. How the D ought to have behaved in the circumstances (what was the required standard of care in these circumstances?)2. How the D did behave- did they fall below the standard of care required?
67
Q

What does atiyah say about negligence?

A

If you’re driving you’re normally liable Allows for even a reasonable man to make a mistake in the heat of the moment Sympathy and the fact that D will not actually pay the damages if found liable Law in the last 50 years had been expanding liability

68
Q

If it’s common practice to speed then can you be let off?

A

NOCommon practice is only doctors

69
Q

What happens if you have a previous criminal conviction?

A

You are assumed guilty and must prove otherwise- reverses the burden of proof

Public International Law (13 decks)

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