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Business Law & Environment > negligence > Flashcards

negligence Flashcards

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1
Q

Examples of torts:

A
  • negligence
  • trespass
  • nuisance (protects use and enjoyment of land)
  • defamation (protects interests in reputation)
  • inducing breach of contract
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2
Q

negligence def.

A

A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.

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3
Q

tort

A

A tort is a ‘wrong’ that is committed against an individual (rather than the state).

Tort liability will arise where damage is caused to the interests of an individual that are protected by law.

Courts can award a sum of money (damages) to compensate the individual for their loss.

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4
Q

The basic model of tort

A

Act (or omission) + causation + fault** + protected interest + damage = liability

*. Fault means malice, intention or negligence (carelessness).

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5
Q

Negligence as a tort

A

Negligence is an unintentional tort.

cover both physical and psychriatic harm

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6
Q

Two important defences to a negligence claim are:

A
  • the claimant consented to the risk of injury

* the claimant was contributorily negligent (contributed to her/his loss)

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7
Q

Negligence

A
  • duty of care
  • breach of that duty
  • breach causes reasonably foreseeable injury
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8
Q

The standard of care

A

To establish that there has been a breach of duty the claimant must show that the defendant failed to exercise the care that the circumstances demanded.

An objective test is used to determine the standard of care that is required in the circumstances.

The test is the reasonable person test :

Blythe v Birmingham Waterworks.

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9
Q

Duty of care

A
  • specific categories

* ‘neighbour’ principle

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10
Q

Development of duty-situations

A

> > Donoghue v Stevenson«

‘neighbour principle’ which later started to be used as the basis for a general test to determine whether a duty of care existed.

Key ingredients for the existence of a duty of care were proximity and foreseeability.

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11
Q

Establishing a duty of care

A

• Is there an established duty?
• If not can an analogy be made with existing duty situations?
• In ‘novel situations’ what are the reasons for and against the imposition of a duty of care?
o The courts will take into consideration all of the circumstances of the case including the neighbour principle and whether it would it be just, fair and reasonable to establish a duty?

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12
Q

The ‘neighbour principle’

A

The case of Donoghue and Stevenson is one of the most famous cases and it all arose from a snail in a bottle of ginger beer!

friend bought ginger beer but she became ill from it, manufacturer had a duty of care even though it she didn’t buy it herself

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13
Q

Who is my Neighbour?

A
  • Foreseeability (was harm to the claimant foreseeable? was the type of harm foreseeable?)
  • Proximity (the closeness or relationship between the parties)
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14
Q

Fair, just and reasonable

A

can’t sue the police and they make it hard for doctors, they have public immunity

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15
Q

Duty of Care: three key ingredients

A
  • Foreseeability
  • Proximity
  • Fair just and reasonable
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16
Q

Liability in negligence distinguished from strict liability under statute

A

> > Negligence
There has to be fault on the part of the duty-holder.

> > Strict liability under statute
Some statutes – such as the Consumer Protection Act 1987 impose civil liability without the claimant having to prove that there has been negligence.

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17
Q

Consumer Protection Act 1987 s2(1)

A

where any damage is caused….by a defect in a product, every person to whom subsection (2) below applies shall be liable…”

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18
Q

a) Public authorities

A

The arguments for immunity are:
»I. Diversion of resources
»II. The nature of service provision -

also Human rights issues:

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19
Q

b) Other limits: the ‘floodgates’ argument

A

flood of claims and;
II. continuing uncertainty about the legal consequences of going about our daily lives.
This argument has been applied with considerable force to the areas of economic loss and psychiatric harm.

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20
Q

Liability for psychiatric harm

A

distinction between primary sufferes> who have suffered psychiatric harm as a result of themselves being physically injured or endangered)

and secondary victims (who have suffered ‘nervous shock’ as a result of witnessing the death or injury of others)

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21
Q

The primary victim

A

both physical and psychological

. Primary victims suffer psychiatric harm (nervous shock) as a result of being physically harmed, endangered or directly involved in a horrific accident caused by negligence.

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22
Q

The secondary victim

A

nervous shock

witnessed an accident or disaster in which primary victims have suffered death or physical injury

23
Q

The Hillsborough disaster

A
  • Football stadium overcrowding
  • Negligent policing
  • Human crush
  • 96 deaths many more injuries
  • Disaster seen/heard by many (TV, other side of stadium, radio)
  • The witnesses suffered psychiatric illness
24
Q

A duty of care is owed to secondary victim if

A
  • The relationship between the claimant and those who were injured was sufficiently proximate (close ties of love and affection)
  • The nervous shock was suffered as a result of seeing or hearing the accident or its immediate aftermath
  • The claimant was close to the accident in time and space
25
Q

Controversy over the duty of care: Liability for economic loss

A

Another area in which public policy plays a large part is in establishing liability for economic loss.

A distinction is drawn between economic loss that happens as a result of damage to property or personal injury and ‘pure economic loss’ which does not occur as a result of damage to property or personal injury.

A duty of care will arise where economic loss flows from personal or proprietary loss.

e.g if claimant can’t work cause of injuries

26
Q

Negligent misstatements

A
  • expert advice
  • reliance by claimant
  • special relationship (reliance reasonable)
  • knowledge of reliance and foreseeable harm
  • fair to impose duty
27
Q

Occupiers’ liability

A

Occupiers of premises owe a duty of care to all lawful visitors and also a separate duty to trespassers.

This is set out in the Occupiers Liability Act 1957 (lawful visitors) and 1984 (trespassers)

28
Q

Trespassers

A

Trespassers are covered by the Occupiers’ Liability Act 1984 but note that the Occupiers’ Liability (Scotland) Act 1960 makes no distinction between trespassers and others

29
Q

British Railways Board v Herrington,

A

a case decided under the common law prior to the operation of the 1984 Act, the defendant railway company knew children were playing near a broken fence at the boundary of the railway but did not repair the fence. A child gained access to the railway through the broken fence and suffered injuries. The defendant was liable.

<>

30
Q

Standard of care

A
  • risk v cost

* reasonable person

31
Q

Risk of harm v cost of avoiding or minimising it

A

The likelihood of harm
» cricket grounds case BOLTON v STONE

The seriousness of the harm

The social usefulness of the defendant’s activity

The cost of avoiding the harm

32
Q

The reasonable person test

A

A hypothetical reasonable person

The correct test is what would have been done by a reasonable person: Blythe v Birmingham Waterworks.

33
Q

Reasonable foreseeability

A

A person will not be liable for every consequence of their negligence. An earlier test limited liability to direct effects but the law now is that the liability is restricted to damage that is reasonably foreseeable

34
Q

Everyday life and practice

A

The ‘hurly-burly’ of life has to be taken into account. This is common sense and realism based on the maxim that ‘we can’t do everything’. Thus, a teacher who did not notice a child wandering out of the classroom while she attended to another child’s cut knee was not negligent

35
Q

Fault

A

If negligence is to be found, there must be fault. That is, the standard of care shown must fall short of that expected from a reasonable person. The courts will seek to identify precisely what the defendant should, or should not, have done.

36
Q

Professional negligence

A

The test for professionals such as doctors, lawyers and accountants is that of the reasonably competent person exercising the particular profession

. That standard is determined by practice accepted by a body of opinion within the profession

37
Q

Causation

A

Burden of proof

The ‘but for’ test or material contribution

Res ipsa loquitur - the thing speaks for itself

Control

Novus actus interveniens

38
Q

Burden of proof

A

This lies with the claimant and is the normal legal position

‘beyond reasonable doubt’.)

39
Q

The ‘but for’ test or material contribution

A

The ‘but for’ test asks: but for the fault - the negligent act - would the harm have occurred?

No -drop case

40
Q

Res ipsa loquitur - the thing speaks for itself

A

The thing speaks for itself
• No explanation available to claimant
• Circumstances were under the defendant’s control
• Must be negligence – no other explanation possible

41
Q

Control

A

Did the duty-holder have control over the relevant matters?

42
Q

Novus actus interveniens

A

This means that there is a new act of negligence intervening with the result that the chain of causation is broken. See Knightly v Johns.

43
Q

Remoteness of damage

A

Foreseeable harm

The eggshell skull rule

44
Q

The eggshell skull rule

A

The eggshell skull rule means that the claimant has to be taken as found, so the defendant is liable for the full extent of the injury as long as the type of injury was foreseeable, even though the extent of the injury was not foreseeable.

45
Q

Defences to negligence

A
  • no duty of care
  • no breach of duty
  • injury not reasonably foreseeable
  • injury not caused by breach
  • claimant to blame for own injury (or partly to blame – contributory negligence)
  • no vicarious liability (see below)
  • the claimant consented to the risk
46
Q

Contributory negligence

A

Contributory negligence is relevant where the claimant has contributed to her/his own injury. Where it applies the damages payable to the claimant will be reduced

eg drunk

47
Q

Assumption of risk

A

Establishing that the claimant has assumed the risk of harm can be a complete defence to a negligence claim.

48
Q

The concept

A

Volenti non fit injuria

– this is a Latin term meaning ‘no wrong is done to one who consents’. That is, a person cannot claim damages for the effects of taking risks to which they have agreed. There are two elements
• The claimant knows of the risk
• The claimant consents to accept the risk

49
Q

The defence

A

Volenti offers a complete defence but the defendant must have committed what in the absence of consent would have been a tort (here, negligence).

50
Q

Exclusion of liability

A

> > Unfair Contract Terms Act 1977 (UCTA) s2(1) / Consumer Rights Act 2015 s65 «

excluded if passes reasonable test or fairness test

51
Q

Damages

A
  • Financial payment
  • Awarded through a legal process
  • For conduct that gives rise to a legal remedy
  • Done by another to the claimant
52
Q

Vicarious liability

A

Vicarious liability refers to liability for the wrongs of others. According to the doctrine of vicarious liability an employer may be liable at common law for acts of his/her employees if the acts were committed in the course of employment.

. Both the employee and employer will be liable as joint tortfeasors
driver blows up petrol station with cig

53
Q

In the course of employment before Lister

A

Lister v Hesley Hall

  • Authorised acts
  • Unauthorised methods
  • Incidental activities
  • Not on a ‘frolic of their own’

Travelling during work

Close enough connection between:
• wrongful act
• work of the employee
to make it fair and just to hold the employer liable

54
Q

Due diligence

A
  • competent people at top
  • control system
  • individual responsibility
  • record faults and rectification
  • supervision
  • training
  • product specification
  • record of supplies

Business Law & Environment (4 decks)

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