negligence - basic decision procedure Flashcards
Negligence basic decision procedure
- Duty of care
- Breach of duty
- Causation
- Damage
- Remoteness
defences
Duty of care - what does lord Atkins’s neighbor principle set out in Donoghue v Stevenson?
- Take reasonable care when harm is reasonably foreseeable
Def may be held liable where c is ‘closely and directly’ affected. By their conduct
Duty of care - what are the case and lord bridges three requirements?
Caparo industries plc v Dickman
- Reasonably foreseeable harm
- Proximity
Justice, fairness and reasonableness
Duty of care - which case sets out lord reed’s approach?
Robinson v chief constable of West Yorkshire
Duty of care - what does lord Reed let out in Robinson v Chief constable?
- in ‘novel cases’ judges have to consider whether they should develop the law incrementally.
Lord Reed finds support for this point in Caparo Industries v Dickman, per Lord Bridge.
Breach of duty - which case gives us the reasonable person test?
Glasgow corporation v Muir, per lord thankerton
Breach of Duty - what is the reasonable person standard?
- Objective external test
Insensitive to d’s personal equations and idiosyncrasies
Breach of duty considerations - cost of taking care cases?
Watt v Hertfordshire County Council
Breach of duty considerations - the seriousness of the harm case?
Paris v Stepney Borough Council
Breach of duty considerations - probability of harm case?
Read v Lyons
Breach of duty consideration case and details?
Watt v Hertfordshire CC
- Emergency of woman trapped under car - Def transported jack on normal vehicle with 3 firefighters steadying, jack slipped and c injured - Def not liable
Dennings LJ -‘you must balance the risk against the end to be achieved’ - responding to an emergency
Dennings in Obiter - if the accident has occurred in commercial enterprise and without an emergency, def would be held liable
Remoteness - which case gives the scope rule?
Overseas tankship ltd v Morts Dock and Engineering Co (Wagon Mound)
- Damage must be of a reasonably foreseeable type
Balance c’s security and def’s freedom of action
Remoteness - eggshell Skull principle case and detail?
Smith v Leach Brain & Co ltd
- Where damage is od reasonably foreseeably type and C’s susceptibility to harm means that their losses extend beyond threshold of reasonable foreseeability, they still may be able to recover compensation
- the burn on the lip suffered by the accident victim was reasonably foreseeable; the eggshell principle was applicable to the disease that ultimately led to his death
Lord Parker - ‘it has always been the law of this country… a tortfeasor takes his victim as he finds him’
Remoteness - process of applying eggshell skull principle?
- Harm was reasonably foreseeable
- Extend of harm suffered goes beyond threshold of reasonable foreseeability
If c has susceptibility, principle can be invoked to make recovery for harm beyond threshold of reasonable foreseeability
Duty of care - which case gives us the neighbour principle and what does it say?
- Donoghue v Stevenson (lord Atkin)
- ‘take reasonable care to avoid acts and omissions … reasonably foresee would be likely to injure your neighbour’
- ‘closely and directly effected’ by the act
Described as ‘apodictic’ by flemming in the law of torts
What did lord Atkin say in 1932 about duty of care?
- To say a person is not to injure his neighbour through acts of negligence covers a very large field
- Whole of tort couldn’t use this rule do unto you…
Ingrained in moral teaching
Duty of care - what was john Flemings criticism of the neighbour principle?
- Ambiguity, is it only concerned with foresight (reasonable foreseeability) or doesn’t it consider other factors
Tension between principle and policy (principle focused here)
Duty of care - which case established neighbor principle should be used as a preamble case?
Lord Reid in Dorset yacht co v Home Office
- To be used unless justification to exclude it
Encourage expansion of the law - creates society more attentive to demands of neighbourhood
in which case did lord bridges Three Duty of Care-Related Considerations
replace the 2 stage test from Anns?
Caparo Industries plc v Dickman
what is Lord Bridge’s Three Duty of Care-Related Considerations?
(Caparo)
The first consideration: reasonable foreseeability of harm.
The second consideration: a relationship of proximity.
The third consideration: ‘the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope’.
duty of care
who talked about the conceptual blurring of Caparo?
The interrelationship between reasonable foreseeability of harm and proximity (per Bingham MR (when Caparo was in the Court of Appeal)).
The interrelationship between proximity and justice, fairness and reasonableness (per Neill LJ in James McNaughten (Court of Appeal)).
duty of care
who was sceptical about proximity, saying its not a definable concept, in Caparo?
Lord Oliver
duty of care
which incremental development case did lord Bridge approve of and follow the approach of in Caparo?
Sutherland Shire Council v Heyman (Australian High Court),
It is preferable … that the law should develop novel categories incrementally
(Australians wanted to promote more certainty in the law than provided in Caparo)
what is the economic approach to duty of care and the case?
We might decide to impose a duty of care where the cost of taking care is less than the expected harm
United States v Carroll Towing,
(never taken by english judges)
duty of care
what did john Flemming say about the impossibility of generalizing?
‘No generalisation can solve the problem upon what basis a duty must arise out of some “relation”, or some “proximity” between the parties’ (The Law of Torts).
‘[W]hat that relation is no one has ever succeeded in capturing in any precise formula’.
duty of care
what did john flemming say about control devices?
Concepts such as duty of care and remoteness are ‘control devices
Judges exercise strong discretion when they use these and other control devices.
If Fleming is right, the distinction between principle and policy collapses.
duty of care
which salient features approach case replaced caparo in Australia?
Sullivan v Moody [2001]
duty of care
what is Australia’s salient features approach?
- considers both principle and policy
The Australian High Court addresses matters of principle before it turns to policy considerations only if needed or relevant
duty of care
what was Kirby J’s ctitique of the salient features approach?
this approach lacks clarity
Fine to understand for a high court judge but not understandable or accessible to a normal person, won’t know where they stand in terms of negligence law
what is the pure omission principle argument against a duty of care?
Kirkham v Chief Constable of Greater Manchester (where the police were held liable for failing to pass on information concerning the suicidal tendencies of a remand prisoner
what is the overkill argument against a duty of care?
Rowling v Takaro Properties Ltd (Privy Council)).
if you impose liability of a council, they’ll be so worried about being sued, itll prevent them actively working to help and improve society, instead putting more work in to preventing litigation against them
why was spring v Guardian a novel application of caparo?
Action concerns ‘pure economic loss’ – not concerned with physical damage or real damage to property, damage is purely financial (had never been a claim of this sort before)
Policy of justice fairness and reasonable meant the claim was successful
duty of care
what happened in white v jones in relation to incremental development of Caparo?
Process of law moaking by judges in novel cases – Wilson talks about incremental development of the law, this case isn’t directly covered by previous cases, so established principles cant be applied, however judges conclude its okay to extend the law by the slight amount the claimant is asking for here, so claim was successful
duty of care
what happened in the policy v principle case of Marc Rich v Bishop Rock that applied Caparo?
D (a classification society) indicated that temporary repairs to vessel would be adequate. C’s cargo was lost at sea.
met first 2 caparo requirements (policy) but argued it wasn’t in public interest (not just fair reasonable) to impose liability as it may stop these societies doing important work
lord Lloyd dissented saying policy argument wasn’t strong enough to trump principle
duty of care
what did Lord Hoffmann argue in Stovin v Wise?
When policy is ‘properly analysed’, it should not matter whether a judge uses the two-stage test from Anns or the three considerations described by Lord Bridge in Caparo.
But Anns is more strongly associated with expansion in the law than is Caparo.
in which case was it said the Caparo test was mistaken and only to be used in cases where there’s no principle to follow?
(where there are principles it is up to judge to decide if law should be developed incrementally)
Lord Reed in Robinson v Chief Constable of West Yorkshire Police
breach of duty
what is the compensation act 2006 s1 for?
- courts may consider whether decision in favor of claimant may prevent desirable activity being undertaken
(deal with problem of blame culture)
what is the key case associated with compo act 2006?
Hopps v Mott MacDonald Ltd:
it was not negligent for the Army or a civilian company to transport civilian employees in un-armoured Land Rovers
- in iraq 2003
(does go against rule of law though as it happened before the act)
what was said in Glasgow Corporation v Muir about breach of duty and pursuit of justice?
Ask question – what would have been reasonably foreseeable at the time the def displayed their conduct
(Balancing C’s interest in security and D’s interest in freedom of action.)
breach of duty
which case (not duty of care) said employers are under duty to provide employees with reasonably safe system of work after employee suffered mental harm (incremental development)?
Walker v Northumberland CC
(def only liable for 2nd mental breakdown as they must have made a reasonable ‘response’
breach of duty
what did lady hale say is important bit about walker case?
that judges should address the question: was harm reasonably foreseeable?
breach of duty
what did jenny steele say about walker and occupational stress?
since Walker, the entire shape of tort liability for psychiatric harm has altered
breach of duty
what are the conflicting opinions about the effects of Walker?
does Walker indicate (a) a strong commitment to the pursuit of corrective justice or
(b) suggest the emergence of a (negative) blame culture?
what did Bolam v Friern say about breach of duty and medicine?
The test is the standard of the ordinary reasonable man [or woman] exercising … that special skill’.
causation
what is the but-for test for factual causation and the case for it?
(i) to identify the necessary conditions of an occurrence and (ii) to eliminate irrelevant considerations
Davis v Bunn
what did lord Asquith say about finding legal causation?
looking for real, direct, substantial cause of the incident
basically searching for the wrongdoers
