Negligence Flashcards
1
Q
What is negligence?
A
‘negligence as a tort is a breach of a legal duty to take care which results in damage to the claimant’ - WVH Rogers (ed), Winfield and Jolowicz on Tort (18th edn, Sweet & Maxwell 2010) 150
2
Q
What is duty?
A
[The duty requirement is that] it has to be shown that the courts recognise as actionable the careless infliction of the kind of damage of which the claimant complains, on the type of person to which he belongs, and by the type of person to which the defendant belongs.’ - Michael A Jones and others (eds), Clerk & Lindsell on Torts, (22nd edn, Sweet & Maxwell 2018), para 8-06
3
Q
What case refined the neighbour principle?
A
Anns v Merton London Borough Council [1978] AC 728 (HL)
4
Q
What are the two stages of the neighbour principle?
A
- Was the relationship between C and D such that D could reasonable foresee harm to C?
- If first question answered affirmatively: are there any policy considerations which should negative or limit the duty?
5
Q
What case overruled Anns v Merton London Borough Council [1978] AC 728 (HL)?
A
Murphy v Brentwood District Council [1991]
6
Q
Which case states that a duty of care exists between lawyer and client?
A
Arthur JS Hall & Co v Simons [2002] 1 AC 615 (HL)
7
Q
Which case states that a duty of care exists between school and child?
A
Woodland v Swimming Teachers Association [2014] AC 537 (SC)
8
Q
When should the 3 stage test in caparo be used?
A
If there isn’t a previous precedent for duty of care
9
Q
What is the 3 stage test in caparo?
A
- Reasonable foreseeability of harm to claimant (neighbour principle)
- Sufficient proximity of relationship (is the relationship between the claimant and the defendant close enough)
- Fair, Just and Reasonable to impose a duty (gives the court the discretion to have the final say)
10
Q
Which case states that a duty of care exists between doctor and patient?
A
Pippin v Sheppard (1822) 147 ER 512 (Ct of Ex.)
11
Q
Which case states that a duty of care exists between road users?
A
Dulieu v White & Sons [1901] 2 KB 669 (KB)
12
Q
Which case states that a duty of care exists between employer and employee?
A
Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 (HL)
13
Q
What case acts as precedent for stage 1 of the caparo test that ‘it was reasonably foreseeable that the defendants failure to take care could cause damage to the claimant’
A
Haley v London Electricity Board [1965] - that defendants duty to take reasonable care not to act in a way that endangered others extended to all those who might reasonably be expected to walk along the pavement – including blind pedestrians
14
Q
What case acts as precedent that the defendant does not owe a duty to the world at large? (Step 1 for caparo test - it was reasonably foreseeable that the defendants failure to take care could cause damage to the claimant)
A
Haley v London Electricity Board [1965] - that defendants duty to take reasonable care not to act in a way that endangered others extended to all those who might reasonably be expected to walk along the pavement – including blind pedestrians
15
Q
What case acts as precedent for a defendant to owe a duty to a claimant who is many miles away? (Step 2 for caparo test - there was a relationship of proximity between the claimant and the defendant)
A
Murphy v Brentwood DC [1991] 1 AC 398 (HL) - Proximity is convenient shorthand for a relationship between two parties which makes it fair and reasonable one should owe the other a duty of care
16
Q
What case acts as precedent for stage 3 of the caparo test that ‘it is fair, just and reasonable that the law should recognise a duty on the defendant to take reasonable care not to cause that damage to the claimant ‘
A
Michael v Chief Constable of South Wales Police [2015]
17
Q
What authority would you use for the starting point of duty of care ‘neighbour principle’?
A
Donoghue v Stevenson [1932] AC 562 (HL) (snail in drink case)
18
Q
What case states that it is fair just and reasonable to impose a duty?
A
Mitchell v Glasgow City Council [2009] 1 AC 874 (HL)
- council had meeting with neighbour who killed the neighbour afterwards
- court held it would not be fair, just and reasonable to impose a duty of the council as this would open a floodgate to these kind of claims
19
Q
What case stated that it was foreseeable that a blind person would have been walking on a pavement and the board owed a duty of care?
A
Haley v London Electricity Board [1965] AC 778 (HL)
20
Q
What case identifies the incremental approach?
A
Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4
21
Q
What case is the best authority for an ‘objective standard’?
A
Blyth v Birmingham Waterworks (1856) 11 Ex Ch 781, 784 (Alderson B) - “…the omission to do something which the reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do
22
Q
What case defined ‘the reasonable man’?
A
Hall v Brooklands Auto-Racing Club [1933] 1 KB 205 (CA), 244 (Greer LJ)
23
Q
What case states the objective standard is not a standard of perfection?
A
Birch v Paulson [2012] EWCA Civ 487
- Claimant who was really drunk and was hit
- The defendant was not liable for the serious injuries as drivers are not required to take absolute and necessary actions but only reasonable care
24
Q
What case states that a defendant is held to the standard of the ordinary skilled man professing to exercise the relevant skill?
And is also the precedent for an objective standard ‘reasonable professional skills’?
A
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (QBD) - case shows us that as long as a group of professionals with that skill would have done the same thing, it is reasonable
25
What case states that the professional practice must be 'reasonable' and 'logical'?
And is also the precedent for an objective standard 'reasonable professional skills'?
Bolitho v City and Hackney Health Authority [1998] AC 232 (HL) (followed the Bolam case but needs to be supported by a medical body) - If what the doctors would have done is unreasonable/illogical then the court will step in and say just because other doctors would have done it, it is still not reasonable.
26
What case states that the more likely the harm, the more the 'reasonable man' would have done to prevent it?
Bolton v Stone [1951] AC 850 - was reasonable a cricket ground could hit a ball outside the grounds, no matter how small it was
- So, if the risk of harm is low, the expectations on the reasonable man are also low
27
What case states that the defendant was not in breach of duty because the claimant did not previously know of his condition?
Mansfield v Weetabix [1998] 1 WLR 1263 (CA) (in contrast to Roberts)
- At the time of the incident the defendant was had a malignant insulinoma which resulted in him being in a hyperglycaemic state although he was unaware of this.
- On the day of the crash he had also been involved in two minor incidents
28
What case states that a doctor has a duty to warn patients of any risks where a reasonable person would attach significance to that risk?
Leading authority where doctors fail to tell patients of the risk
Montgomery v Lanarkshire Health Board [2015] UKSC 11
- The test for whether you have done what you should have done is - whether a reasonable person in the patients position would have attached significance to the risk or should the doctor have known if they would be likely to.
- Test should be in the circumstance of the case that a reasonable person in that position to know of risk sand the doctor should attach the risks
- The only exception to this is that a doctor can refuse to disclose a risk if they believe sharing it would be seriously detrimental to their health.
29
What case states the 'reasonable man' is an objective standard?
And that the standard for driving as a learner is the same as that for someone who is licenced
Nettleship v Weston [1971] 2 QB 691
- reasonable man standard is objective - not bothered about how skilled the actual person is, just care about what a reasonable man would do.
30
What case holds a child to the standard objectively expected of a child of that age?
Orchard v Lee [2009] EWCA Civ 295 - objective standard for a 'reasonable child'
There was no breach as they were acting as boys
31
What case states the courts will balance all factors before making their decision?
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound) (No 2) [1967] 1 AC 617 - case with oil sitting on surface of water and caught fire
32
What case states that the more serious the injury, the more the "reasonable man" would have done to prevent it
Paris v Stepney Borough Council [1951] AC 367 (HL) - The employer had breached his duty where employee had suffered serious injury when a metal chip flew into his good eye
33
What case states that a reasonable parent would not have predicted the severity of the injuries induced from children playing on the bouncy castle
Perry v Harris [2008] EWCA Civ 907
34
What case stated that he had fell below that requisite standard (followed Nettleship case)?
Roberts v Ramsbottom [1980] 1 WLR 823 (QBD) - The court found on the evidence that he had felt the symptoms where he had to meet the standard of a reasonable competent driver because he felt symptoms of stroke before driving
35
What case states the defendant's conduct will be assessed at the time of the breach and NOT with hindsight?
Roe v Ministry of Health [1954] 2 QB 66 (CA) - Can't hold doctors practicing in 1947, to the standards of 1954 doctors.
36
What does s.1 of the Compensation Act 2006 state?
'A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might-
(a) prevent desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.'
37
What case states that the circumstances of the case can sometimes be evidence of carelessness - "res ipsa loquitur"
Scott v London and St Katherine Docks Co [1865] All ER Rep 248
38
What case states greater the "social value" of the activity, the lower the courts' safety expectations?
Which was also reinforced in s.1 of the Compensation Act 2006
Watt v Hertfordshire County Council [1954] 1 WLR 835 (CA) - Fireman seriously injured by heavy lifting gear when travelling on a vehicle which hadn’t been properly fitted to hold the equipment.
- Court said defendant didnt need to check if equipment was fastened correctly no as was an emergency and shouldn’t have had to spend time checking
- Court dont want to discourage people for doing things which have social value
39
What case states the Objective standard for ‘other skills’ – a person of reasonable competence of that skill
Wells v Cooper (doorknob not fitted properly)
40
What case states the junior doctor would be held to the reasonable standard of a competent doctor?
Wilsher v Essex Area Health Authority [1987] 1 QB 730 (CA)
41
What is factual causation?
'Factual causation is concerned with establishing the physical connection between the defendant’s wrong and the claimant’s damage. What evidence exists to link the defendant’s wrongdoing to the damage, and is that sufficient to persuade the court that causation is established?' - Michael A Jones and others (eds), Clerk & Lindsell on Torts, (22nd edn, Sweet & Maxwell 2018), para 2-03
42
What case states the claimant was entitled to the damages from the first defendant?
Where you have two independent events that causes damage and the second defendants breach produces the same damage as that caused by the first defendant, the first event would be treated as the cause
Baker v Willoughby [1970] AC 467 (HL) - the defendant remained liable for the loss of amenity and lower earning capacity even after the amputation
- defendant ran claimant over and injured his leg
- two diff defendant shot claimant in the bad leg which later needed to be amputated
43
What case introduced proportionate damages introduced for non-cumulative conditions involving multiple defendants (this is an exception for the fairchilds case – mesothelioma
Barker v Corus UK Ltd [2006] UKHL 20 (overruled in respect of mesothelioma by s.3 Compensation Act 2006)
- This was to say that if there are 5 defendants, they pay their 25%
- S.3 of the compensation act says they will overrule this and go back to joint liability for mesothelioma cases only but for anything else where it is a non-cumulative condition then we have proportionate damages
44
NEED TO KNOW
| What case is a classic example of and authority for the "but for" test in tort law - leading authority for ‘but for’
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 (QBD)
- Doctors fails to examine patient
- Patient is suffering from arsenic poisoning and then dies
- The doctor admitted he had breached his duty and fell below the standard
- However, on the evidence, the man would have died even if the doctor had examined him correctly – therefore there was no tort of negligence
Factual (but for test) but for the d breach the harm wouldn’t have happened) and legal (remoteness – what loss would you expect from the harm) causation
Causation links the breach to the loss
45
What case is an exception to ‘Proportionate damages introduced for non-cumulative conditions involving multiple Ds – Barker v Corus): Uncertain actions
Relevant in relation to causation
Bolitho v City and Hackney Health Authority [1998] AC 232 (HL)
46
What case is an exception to ‘Where there are multiple potential causes, the defendant may escape liability (non-cumulative condition) – Wilsher v Essex’ & ‘but for’: where defendant breach has caused a material contribution to harm (Cumulative conditions)
Bonnington Castings Ltd v Wardlaw [1956] 2 WLR 707 (HL) - "Guilty" dust + "Innocent" dust = material contribution to condition
Where bonnington pre-dates wilsher but it was not overruled
Wilsher was where a junior doctor would be held to the reasonable standard of a competent doctor
47
What case is an exception to ‘Proportionate damages introduced for non-cumulative conditions involving multiple defendants – Barker v Corus’ – to but for test: Unjust results: a failure to inform
Chester v Asfar [2005] UKHL 41 - Medical professionals have a corresponding duty to informing patients to the risk of duty so as to facilitate an informed consent
- doctor failed to warn patient of a small risk of getting a spinal condition from treatment
- claimant contracted the condition
- Evidence showed that although the patient may not have had the procedure at the time, but she would have done later on
48
What case is an exception to ‘Proportionate damages introduced for non-cumulative conditions involving multiple defendants - Barker v Corus UK Ltd [2006] UKHL 20’: Unjust results: mesothelioma (An non-cumulative condition)
- the employers were joint and severabley liable
Fairchild v Glenhaven Funeral Services [2002] UKHL 22
- Asbestos: a single exposure (non-cumulative) can cause a fatal lung cancer, but the medical evidence isn’t there to say when this exposure was
- The employee had been exposed to asbestos by a number of employers over the years
- This is an exception to the case as there wasn’t 50% or more to say which employer was responsible to satisfy the but for
- the employers were joint and severabley liable
49
What case is an exception to ‘Proportionate damages introduced for non-cumulative conditions involving multiple Ds - Barker v Corus UK Ltd [2006] UKHL 20’ – but for test: Indeterminate causes
Fitzgerald v Lane [1989] AC 328 (HL)
- 2 drivers hit pedestrian in equal succession
- It was impossible to say on the evidence which caused the harm, it could have been from both therefore neither defendant was 51% liable
- both defendants were materially contributing to the risk of serious injury and both liable
50
What case ruled out the possibility for lost chance could not form the basis of a medically negligent claim
Greg v Scott [2005] UKHL 2
- This reduced his prospect of disease-free survival from 42% to 25%.
- The patient could not claim for damages against the doctor as the initial prospects of recovery were not more than 50%
51
What case applies where the material harm exception to the but for test applies in cases of cumulative conditions, the claimant can now only recover proportionate damages to the extent of their contributions
Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 (CA)
- claimant exposed to asbestos during his working life and contracted asbestosis
- He worked for the defendant for 12 years but worked for other employers who each exposed him to asbestos for periods of up to five years.
- The claimant's appeal was dismissed. The defendant was only liable in proportion to the exposure they had actually caused.
52
What case states that if the defendant can foresee harm to the claimant, they are proximate?
Murphy v Brentwood DC [1991] 1 AC 398 (HL)
| - overruled the Anns case
53
What case states that a subsequent naturally occuring event will end the earlier tortious liability?
And that the employer was only liable up to the point in which he suffered the unrelated disease
Jobling v Associated Diaries Ltd [1982] AC 794 (HL)
- work related injury
- before trial, claimant contracted an unrelated disease where he was unable to work again
- the employer was only liable up to the point in which he suffered the unrelated disease
54
What case applies to the Exception to ‘Where there are multiple potential causes defendant may escape liability (non-cumulative condition) Wilsher v Essex Area Health Authority [1988] : Material increase in risk (Non-cumulative conditions)
Where guilty dust did not contribute to the harm itself, only to the risk of harm
McGhee v National Coal Board [1973] 1 WLR 1 (HL)
- employer had not provided correct washing facilities so employee left with dust on him
- this is non-cumulative as one bit of brick dust can cause the condition
- The courts allowed liability in this case and held that the fact that the employers negligence had materially increased the risk of harm was enough – more exposure to more harm
55
What case states a subsequent negligent event will usually result in a separate and divided tortious liability for the first and second defendants
Murrell v Healy [2001] EWCA Civ 486 (different approach to jobling)
- Claimant involved in car crash where first defendant paid compensation
- Claimant involved in second crash where the second defendant would only need to pay compensation for loss after first accident
56
What does s.3 of the Compensation Act 2006 state?
Mesothelioma: damages
- Overrules Barker v Corus in respect to mesothelioma cases and that cases for this will be joint and severable for all negligent employers
57
What case states that where only one defendant is proved to have negligently exposed the victim to asbestos - the fairchild exception also applies to mesothelioma cases
Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10
58
What case is an exception to the but for test as the hospital negligently contributed to the cumulative harm
Williams v The Bermuda Hospitals Board (Bermuda) [2016] UKPC 4
- there was innocent sepsis prior to the scan which the hospital delayed
- there was also guilty sepsis as a result of the delay
- The hospital negligence materially contributed to the cumulative harm and therefore this is an exception to the but for test
59
What case states where there are multiple potential causes, defendant may escape liability (non-cumulative condition)
Wilsher v Essex Area Health Authority [1988] 1 AC 1074 (HL)
- baby given too much oxygen
- baby left blind in one eye and seriously impaired in the other
- For but for causation we need to show that it was at least 50% likely whereas here there are 5 possible causes
- doctor was not liableas there needed to be a 51% probability
60
What is a non-cumulative condition?
One which has a number of possible causes and any one of those causes could be the cause; looking at one single cause
61
What is a cumulative condition?
All the causes together have resulted in the condition
62
What is legal causation?
'...where responsibility for causing the damage should be attributed...The court may [...] have to make a choice as to whether the defendant’s wrongdoing is to be treated as having causative relevance, or whether the other causes, without which the damage would also not have occurred, effectively supersede the causative potency of the defendant’s wrongdoing.' - Michael A Jones and others (eds), Clerk & Lindsell on Torts, (22nd edn, Sweet & Maxwell 2018), para 2-97
63
What case states that what counts is whether the kind of damage was foreseeable, rather than the extent
Doughty v Turner Manufacturing Co [1964] 1 QB 518 (CA)
- piece of asbestos landed in bubbling hot liquid which caused a chemical burn on claimant
- Wasn’t foreseeable that the asbestos falling into liquid would’ve caused this damage
64
What case states that the claimant's later criminal act will break the chain of causation
Gray v Thames Trains [2009] UKHL 33
- claimant committing a criminal act would probably break the chain of causation
- claimant involved in a train crash which resulted in them suffering mental and physical harm and ptsd
- because of the ptsd, the claimant stabbed someone and tried to sue train for his actions
- he was unsuccessful
65
What case states that what counts is whether the kind of damage was foreseeable, rather than the extent
Hughes v Lord Advocate [1963] AC 837
- This is an opposite result to Doughty v Turner (chemical burn from oil splash)
- child knocked lamp in manhole and suffered burns - - said it was unforeseeable that the explosion would’ve happened
- but was foreseeable that there would have been burnt
66
What case states that a claimant does not break the chain of causation by committing suicide in custody
Kirkham v Chief Constable of Greater Manchester Police [1990] 2 QB 283 (CA)
- police knew claimant was a suicide risk and were under a duty to protect him from suicide
- the court stated that by doing the very thing which he could have been expected to do (suicide), wasn’t breaking the chain of causation
67
What case states that a subsequent negligent act may break the chain of causation
Knightly v Johns [1982] 1 WLR 349
- police inspector instructs his officers to drive against traffic in a tunnel
- chain of causation was broke as the the negligence sending office down the tunnel against the flow is reasonable to foresee that some harm would’ve happened
- therefore the person who hit one of the police officers driving down the tunnel wasn't liable
68
What does breaking the chain of causation mean for the defendant?
They will not be liable
69
What case identifies the 'eggshell skull rule' also applies to economic harm?
Lagden v O'Connor [2003] UKHL 64
| Where the eggshell skull rule is from Smith v Leech Brain & Co Ltd [1962] 2 QB 405
70
What case states that a claimant's negligence may break the chain of causation (but mere unreasonable conduct is not enough)
McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621 (HL)
- in the moment of falling down stairs, to avoid landing on his head he threw himself forward
- he broke his ankle
- court stated he couldn't claim for ankle as it was due to his own negligence
- the chain of causation was broke
71
What case identifies remoteness (whether it was foreseeable for the defendant to foresee what they did would cause harm) test = was the kind of damage reasonably foreseeable at the point of breach?
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co (The Wagon Mound) No 1 [1961] AC 388 (PC) - WAGON 1
- oil leaked and spread across surface of water
- spark went off and landed on water which lit up and destroyed claimants ship
- 'But for’ the oil being spread on the water, the claimant ship would not have been destroyed = factual causation
- however the oil spill catching fire did NOT constitute to legal causation
72
Was it Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co, Wagon 1 or Wagon 2 which held that the defendant would be liable for the fire due to the oil spill?
Wagon 2
73
What case states that the act of suicide which the police were under a duty to prevent would deprive the duty of any substance?
Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360 (HL)
- claimant was a suicide risk and had attempted suicide previously on multiple occasions
- he committed suicide in police cell
- he was not depressed nor schizophrenic
- defendant was liable, however damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945.
74
What case states that a subsequent negligent act may not be enough to break the chain of causation?
Rouse v Squires [1973] 1 QB 889
- Lorry driver jack knifed lorry which cuts across the motorway lanes
- Some other drivers stop to try and help out
- A later driver did not see this lorry across motorway early enough and ploughed into one of the parked drivers which killed a driver in a parked car
- Two negligence: lorry driver who did jack knife; the second driver who went into the parked driver
- But for either of these things, none of these things happened
- Court held the chain was not broken and both drivers were foreseeable
75
What does s.1 of the Civil Liability (Contribution) Act 1978 state?
a) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).
- s.1 gives defendant a legal right to sue each other for liability that they share
- If 2 defendants is jointly liable for the same damage, then they would both liable
- This creates a cause of action against the defendant
76
What case states that a defendant is liable for the full extent of harm caused, even if more than might be expected due to weakness or frailty ("eggshell skull" rule)
Smith v Leech Brain & Co Ltd [1962] 2 QB 405
- The claimant was burnt on lip but because the claimant had a pre-cancerous skin condition
- The burn caused the cancer which caused the claimants death
- defendant liable for the whole death
77
What case states the claimant’s reasonable act did not break the chain of causation when recovering from an injury, the original tortfeasor was still liable for the further injury
Wieland v Cyril Lord Carpets [1969] 2 All ER 1006 (QBD)
78
What case can be used as an example of 'contribution'?
Wright v Lodge [1993] 4 All ER 299 (CA)
- driver broke down on motorway and couldnt make it to the hard shoulder
- lorry skidded across hitting 2 and killing 9 people
- lorry driver liable for 90%
- broke down driver liable for 10%
