Negligence Flashcards
What is tort?
Tort is a civil wrong that causes the claimant to suffer loss or harm for which the tortfeasor can be liable
What is negligence?
The breach of a legal duty to take care by the defendant resulting in a recognised loss to the claimant
What is a duty of care ?
Why are there instances where courts are reluctant to impose a duty of care?
A judicial creation that imposes a duty by law for a party to act with ordinary care and skill.
common sense will often point to the existence of a duty in the name of a fair and just outcome. However, other considerations of policy may make the courts wary to implement a duty if care if there is a good reason not to
Ie it will make an organisation ace defensively
It will open the floodgates to too many claims
Involve crushing liability
Or indemnity insurance should have been taken out
What are the elements for negligence claim to be successful?
- Loss or damage of a recognised kind
- A duty of care owed by the defendant
- Breach of duty of care
- Factual and legal causation
- Proof damage was reasonably foreseeable - not too remote
- Defences - does the def have a valid defence
What was the approach prior 1932 and the seminal case of Donaghue v Stevenson?
What was said by Brett Mr in which case regarding a duty of care?
Courts examined the existing case law and tried to fit the case in hand into an existing category.
In heaven v pender 1883 Brett mr stated:
A duty arises to use ordinary care and skill to avoid such danger
Outline the facts for the seminal case of Donoghue v Stevens …
What Lord developed a new principle for the law of tort?
What was its significance?
Donahue sued manufacturer of a ginger beer her friend bought her in a café. She had no direct relationship with the contract of sale as her friend bought the beer. She found in it a decomposing snail and alleges to have become ill. The snail was never proven and she settled out of court for £100.
Lord Atkins developed the neighbour principle- acts or omissions which you can reasonably foresee will injure your neighbour
Sowed seeds for a general test establishing duty of care based on foresight of harm.
What was the significance of Anns v London Borough of Merton with a brief overview of the case?
What Lord developed a new test for the duty of care?
What is the test?
Local authorities negligently inspected building work.
Lord Wilberforce developed a 2 stage test.
- Is there a sufficient relationship of proximity or neighbourhood between parties?
in which case a prima facie duty arises
- Are there any policy reasons that dictate no duty should exist
What 2 cases undermined the Wilberforce test?
What Lord was most eloquent on the subject?
Yuen kun yeu v AG of Hong Kong and Rowling v takaro
Lord Keith expressed reservation that the two stage test was too wide and had led to a massive expansion of a prima Facie duty of care where it wasn’t always desirable or appropriate
What 2 cases established a new test?
What Lord gave the reasoning for a new approach and what was the reasoning?
Caparo v Dickman and Murphy v Brentwood
Lord Bridge - “The law should develop novel categories of negligence incrementally and by analogy with established categories “
What is the Caparo test?
Courts should consider if there is a precedent and apply it analogously. If the case falls into novel categories they should use the caparo test …
- Was the damage reasonably foreseeable?
- Was the relationship of sufficient proximity
- Is it fair just and reasonable to impose a duty - taking into account policy considerations
Do emergency services for fire and rescue owe a duty of care to respond to an emergency?
Capital and counties v Hampshire county council - courts closely followed reasoning of alexandrou v Oxford - no duty for fire brigade to respond to an emergency , but if they do, they have a duty not to make the situation worse through a positive act.
Likewise a coastal rescue service was OLL Ltd v SS for the Home Dept, was held not to owe a duty to respond to an emergency call
What case defines the duty of care for the Ambulance service, and why is it different to other rescuers?
Ambulance owes duty of care to patients as part of the NHS
Kent v Griffith and others
Acceptance of an ambulance 999 establishes a duty of care to respond within a reasonable time - call establishes proximity between the parties
However, they cannot be held liable if for good policy reasons they don’t prioritise the case over another more pressing emergency
What are the 5 problem categories where caparo will be applied?
- Omissions
- Failure to prevent a 3rd part causing harm
- Rescuers - where rescuer is the claimant
- police
- Local authorities
