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Law - Negligence > Negligence - All > Flashcards

Negligence - All Flashcards

1
Q

Intro - who defined negligence

A

Baron Alderson

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2
Q

Intro - what did Baron Alderson say

A

” Failing to do something which the reasonable person would do or something the reasonable person wouldn’t do”

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3
Q

Intro - what can negligence be

A

Act or omission

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4
Q

Intro - what does negligence protect against CHECK OVER

A
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5
Q

Intro - what must claimant prove

A

That the defendent was negligent through balance of probabilities.

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6
Q

Intro - negligence test

A
  1. D owe doc
  2. C prove breach of duty
  3. Ds actions caused reasonably foreseeable damage
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7
Q

Doc - case

A

Robinson v chief constable of West Yorkshire police 2018

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8
Q

Doc - what did Robinson v cheif constable of West Yorkshire police hold

A

If there’s an established relationship between claimant and defendent then fair just and reasonable to apply an established doc

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9
Q

Doc - all 6 duties

A
  1. Volunteer
  2. Statutory (RTA 1988)
  3. Limit harm caused
  4. Relationship
  5. Public Office
  6. Contractual
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10
Q

Doc - Ao3 CHECK OVER

A

P - SC decide novel cases, courts need exercise judgement that involves consideration of what’s fair, just and reasonable
DP- Positive-individualised-increase access to Justice, fair trial
WDP - Inconsistencies - subjective -each judge different

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11
Q

Breach- what test is this

A

Objective

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12
Q

Breach- objective, meaning…

A

It judges to the standard of ordinary and reasonable person performing the same task

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13
Q

Breach- General case

A

Vaughan v menlove

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14
Q

Breach- 3 categories

A

Professional
Learner
Yound people & children

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15
Q

Breach- (professional) how are they judged?

A

Judged to standard of profession as a whole

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16
Q

Breach- (professional) case (1)

A

Bolam v fiern Barnet hmc

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17
Q

Breach- (professional) Bolam v doesn’t Barnet hmc established what

A
  1. Fallen below standard of ordinary competent member of profession
  2. Substantial body opinion within profession that wouldn’t support actions taken by D
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18
Q

Breach- (professional) case (2)

A

Montgomery v Lanarkshire health board 2015

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19
Q

Breach- (professional) what did Montgomery v Lanarkshire health board establish

A

That doctors have to disclose any serious issues in child birth
If you accept the risk - face the consequences

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20
Q

Breach- (professional) AO3

A

P - follow Montgomery - if risk manifests - doesn’t mean doctors cannot be liable. If doctor negligent and was the reason risk was brought about = liable
DP - ensure C protected, if risks, doctors ensure greater care
WDP - Montgomery decision changed way doctors were tried. However unclear whether changes in law or whether judges trying to provide clarity in case regarding childbirth

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21
Q

Breach- (learners) how are they judged

A

Judged to standard of competent and more experienced person

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22
Q

Breach- (learners)case

A

Nettleham v weston

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23
Q

Breach- (learners) nettleship v weston held

A

Meet same standards as reasonable qualified competent driver

24
Q

Breach- (learners) AO3

A

P - fair, encourage greater standard of care whilst driving - even though learning
DP- good that we have standard test. Easy to apply. Everyone finishes learning at different times, therfore, fair to hold all to same standard- consistant
WDP - c never out of pocket - insurance - ensure d compensated
VWDP - however, unfair, deter from learning, fear of being sued

25
Breach- (child) judged by?
Judged to the standard of reasonable person of D's age at the tome of incident
26
Breach- (child) the way they're judged was established by the case...
Mulling v Richards
27
Breach- (child) case (2)
Orchard v lee
28
Breach- (child) orchard v Lee held
Only liable if playing together in a way a normal 13 wouldn't
29
Risk factors- all 5
1. Special characteristics 2. Size of risk 3. Appropriate precautions 4. Risks known? 5. Benefit to risk?
30
Risk factors- (special characteristics) case
Paris v Stephen Borough Council (bod, duty owed, blind in one eye)
31
Risk factors- (special characteristics) AO3
P- encourage employers to have greater suty for employees DP- goddles nit needed for everyone but should have recognised that the cost and efforts of providing goggles was small compared to consequences of loss of sight WDP- judicial creativity - whats a special characteristic?
32
Risk factors- (size) small
Not expected great precautions Bolton v stone
33
Risk factors- (size) high
Greater doc Haley v London electricity board
34
Risk factors- (appropriate precautions) case
Latimer v AEC Ltd- no breach, no duty to close factory
35
Risk factors- (risks known) case
Roe v minister of health - no breach, risk not reasonably foreseeable, unknown at time
36
Risk factors- (risks known AO3)
P - no compensation- unfair DP- not given access to justice, constant care due to severity of injuries, costly if cant afford it WDP- however no amount of money placed on loss of living independently
37
Risk factors- (benefit to risk?) case
Emergency, lower standard of car accepted Day v high performance sports
38
Damage - CIF test
But for
39
Damage - CIF case
Barnett v Chelsea Kensington HMC
40
Damage - CIF barnett v Chelsea Kensington hmc held
Hospital not liable, but for doctors examination, he would have died regardless
41
Damage - CIL test
Not too remote, reasonably foreseeable (wagon mound No1)
42
Damage - CIL case (1)
Bradford v Robinson rentals Rf, not too remote, employer liable
43
Damage- CIL case (2)
Doughty v Turner asbestos Too remote not RF that explosion would occur
44
Damage - NAI
Break chain of causation Act of claimant/ nature / third party
45
Damage - eggshell
D take v as he finds him - pre existing condition
46
Damage - AO3
P- only difference between cases was Bradford aas RF and doughty was not RF DP- led to 1 c getting compensation and not the other- even though both resulted in injury WDP- deny c access to justice. Rules on remoteness of damage unfair on some claimants as ds liability limited
47
Defence- 2 types
1. contributory negligence 2. Consent
48
Defence- contributory negligence
Partial defence Reduction of damages When c contributed to their own harm
49
Defence- consent
Full defence No damages 1. Full knowledge of risk 2. C exercised free choice 3. C voluntarily accepted risk
50
Remedies- all 5
1. Compensatory damages 2. Pecuniary losses 3. Non Pecuniary losses 4. General damages 5. Special damages
51
Remedies- compensatory damages
Put c back in position before tort
52
Remedies- pecuniary losses
Calculated in terms of money
53
Remedies- non pecuniary losses
Not wholly money based - not quantifiable
54
Remedies- general damages
Look forward from date of trial
55
Remedies- special damages
Calculated up to date trial
56
Conclusion
P- although straight forward, c prove 3 elements of test create anxieties DP- result in stress being added to c , especially if they can't afford legal representation. Feel bullied if opposition had representation WDP- However ADR private process, no publicity, attractive to businesses involved in dispute as court hearing negative impact future negotiations. Also date and time more flexible alongside type of hearing = cut down costs for C
57
Reform
A state- run benefit (like canada) pay compensation to victim of accident without ability to prove why accident happened. Funded through general taxation.

Law - Negligence (1 decks)

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