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Tort Law > Negligence breach > Flashcards

Negligence breach Flashcards

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1
Q

what is breach of duty?

A

builds on d.o.c
look at behaviour
need d.o.c if dont = no breach hw should always try mention to get higher marks

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2
Q

Histroical cases for breach duty?

A
  • Blyth v. Birmingham Waterworks [1856]- reasonable man test- feminists argue this point
  • Hall v. Brooklands Auto Racing Club [1933]- “average person”
  • Glasgow v. Muir [1943]- not absolute tandard more dangerous act more care u should take- flexxible
  • London Passenger Transport Board v. Upson [1949]- even though driver still at fault
  • Sir Alan Herbert:- what is reasonable man - white female etc is it enough to represent society
  • Davis Contractors v. Fareham Urban District Council [1956]- quote for reasonable man just reinforcing it
  • McFarlane v. Tayside Health Authority [2000]- constitutes what reasonable is - wrongful
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3
Q

what could affect standard of care?

A

children , special skil

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4
Q

children cases?

A

McHale v. Watson [1966] (Privy Council)- australiab case- kid standard fluctuates, diff level diff expec, boys 12 act boys 12

  • Camarthenshire CC v. Lewis [1955]- school do better didnt teachers fault
  • Gough v. Thorne [1966]- childrens v vs adults- can chuld be contrib neg but if do adult at will be compared to adult act e.g driving car if nto compared to kid activity
  • Mullin v. Richards [1998]- no liab reasonable for play
  • Surtees v. Kingston-upon-Thames BC [1991]7-accidents happen
  • Armstrong v. Cottrell [1993]-Key Facts: A 12yr old girl was hit by a motorist and sustained serious injuries when she hesitated on pavement before crossing the road (1/3 CN)

-Fowles v. Bedfordshire CC [1995]– assumed respons- dont put by wall-Key Facts: A gymnast was injured when he over-rotated into a wall while performing a forward somersault off a trampette at a YMCA facility (2/3 CN)
??

-Smolden v. Whitworth & Nolan [1996] -not kids fault

Kearn-Price v. Kent CC [2003]-??

  • Blake v. Galloway [2004]-
  • Harris v. Perry [2008]-??- hire tramp- accidnts happen however do believe to blame dad
  • Orchard v. Lee [2009]-??
  • Palmer v. Cornwall CC [2009]- supervision case
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5
Q

what is meant by special?

A

Leading Case: Dunnage v. Randall [2015] EWCA Civ 673
The test for negligence is still based on objective, reasonable care, however if a defendant is NOT aware of a disabling condition or acting in an autonomous state, they will not be liable
Greater care must be taken during activities if people have disabilities

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6
Q

cases for special?

A

-Roberts v. Ramsbottom [1980] DISAPPROVED- dont use
-Mansfield v. Weetabix [1998]- coma not liab didnt know gonna happen
-Haley v. London Electricity Board [1965]- blind more standard
-Morrell v. Owen [1993]-??
-Dunnage v. Randall [2015]-??
-

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7
Q

what do you do after looking at breach rmt and raising stndards?

A

risk factors

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8
Q

cases for risk factors?

A

-Bolton v. Stone [1951]- cricket - didnt happen very often

cts- not q of law more so fact of degree

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9
Q

how do courts balance this?

A
  • Magnitude of the Risk (Severity) -super dangerous= special care e.g risk odeath/injury
  • Frequency of the Risk- how many times does it happen-more likely need to do suen what about high risk/severity= sibjective
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10
Q

what do you balance these against?

A
  • Cost of taking precautions- how much cost to fix it

- Social Value / Utility- could reduce level of risk

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11
Q

look how appealed?

A

ALARP (As Low As Reasonably Practicable)- reduce risk as low as poss cant have zero risk- whats reasonabke?- how do we blance agaisnt what aken palce

2(1): It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
3(1): It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health employed to persons other or safety.

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12
Q

stat instruments?

A

list all

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13
Q

what are risk matrices?

A

numbers for dangerous ct and libiality and ehat u need to do, examine if really dangerous might implement insurance etc

apply bolton- low freq - social val could do fence but doesnt happene everday

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14
Q

what are risk assess?

A

do by writing like matrices just written format

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15
Q

cases for risk ?

A

-Paris v. Stepney Borough Council [1951]
-Latimer v. AEC [1953]
- Overseas Tankship (UK) Ltd – The Wagon Mound (No.1) [1961]
-Roe v. Minister of Health [1954]
-Eckersley v. Binnie [1988]- if cant prove dam not liable - foreseebLE-need precatuions
-Day v. High Performance Sports [2003]- climb= rare but just dont do it again have precaution for next
-Poppleton v. Trustees of the Portsmouth Youth Activities Cmtee [2008]
-Blair-Ford v. CRS Adventures Ltd [2012]
-Uren v. Corporate Leisure [2013] (No.2)
-Tomlinson v. Congleton Borough Council [2003] UKHL
47
-Watt v. Hertfordshire CC [1954]
-Smolden v. Whitworth & Nolan [1996]
-Barnes v. Scout Association [2010]
-Roddie v. Ski Llandudno [2001]

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16
Q

what do we do next after risk?

A

bolam medical law

17
Q

bolam test?

A

Hunter v. Hanley [1955] (Scotland)?

18
Q

what happned in bolam?

A

Bolam [1957]-Key Facts: A patient received a number of fractures following the administration of ECT at a mental hospital
- doc not guility of neg
big case

if group of people say 1 thing = okay hol said not about breach

19
Q

cases with bolam?

A

Anderson v. Chasney [1981] (CANADA)- no neg but not fair

Hucks v. Cole [1993]- diff drug still sufferes- not just wrong but also unreasoable

20
Q

what happened in bolitho?

A

do thye consider risks and benefits

bolam find but do this do

21
Q

what happned in Defreitas v. O’Brien [1995]?

A

-

22
Q

summary of medical?

A

Leading Case: Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582
Doctors should be judged by whether they have acted in accordance with other skilled doctors (notwithstanding they may be contrary views)
Leading Case: Bolitho v. City & Hackney Health Authority [1997] 4 All ER 771
BUT, any decision must also be LOGICAL
and consider the RISKS & BENEFITS

23
Q

other bolam cases?

A

-Hyde & Associates Ltd v. JD Williams & Co [2001]
-Adams v. Rhymney Valley District Council [2000]
-Chittock v. Woodbridge School [2002]
-Herald of Free Enterprise [1987]
-Thompson v. Smiths Shiprepairers (North Shields) Ltd [1984]
-Watson v. British Boxing Board of Control (BBBC) [1999]
-

24
Q

summary bolam whole?

A

Leading Case: Hyde & Associates Ltd v. JD Williams & Co [2001] BLR 99
The Bolam test is equally applicable to non-medical contexts, however there are three qualifications to its use where it does not apply (illogical, no responsible body, no special skill involved).

25
Q

what do we look at now?

A

specific types of people who can breach:
novices
experts

26
Q

what about novie?

A

not fair to apply reasonable man?- ends up same standard as every1 else

Leading Case: Nettleship v. Weston [1971] 2 QB 691
Novices and inexperienced defendants will still be treated by the (objective) standard of the ‘reasonable person’, notwithstanding that they may not actually possess those skills

27
Q

cases for novices?

A

Nettleship v. Weston [1971]- compared to reasonable driver
Cook v. Cook [1987] (High Court of Australia)- rels btw 2 ppl in car -subj kicked in
Imbree v. McNeilly [2008] (High Court of Australia)- back to nettleship view
Wilsher v. Essex AHA [1988]- junior -judge by doc standard- no liab - asks senior takes repons

28
Q

what about experts?

A
  • Phillips v. William Whitely [1938]- compare to tatoo stadard
  • Wells v. Cooper [1958]- compare to amateur carperter okay
  • Greaves & Co (Contractors) v. Baynham Meikle & Partners [1975]- can standards get higher= rejcted
  • Eckersley v. Binnie [1988]-rejects expert standard
  • Knight v. Home Office [1990]-
  • Defreitas v. O’Brien [1995]- expert standard
29
Q

other cases for experts?

A
  • Duchess of Argyll v. Beuselinck [1972]
  • Wimpey Construction (UK) Ltd v. Poole (DV) [1984]
  • Matrix Securities Ltd v. Theodore Goddard (A Firm) [1998]
  • Meiklejohn v. St George’s NHS Trust [2014]
  • Shakoor v. Situ [2001]
30
Q

what about hierachies?

A

law not sure
judge by standard it all depends
higher driver= higeher driver
3yrs - 20yrs it all depends

31
Q

cases for hierachy?

A

Condon v. Basi [1985]- varying sporting standards- 1srt legaue 3rd league
Elliott v. Saunders, (unreported QBD, 10 June 1994)-applied same ref same for both
-Bartlett v. The England Cricket Board Association of Cricket Officials [2015]

32
Q

overall for experts?

A

Leading Case: Meiklejohn v. St George’s NHS Trust [2014] EWCA Civ 120
An expert should be judged by the appropriate (objective) comparator of similar experts
The applicable standard is what skills and abilities the defendant holds themselves out to possess

33
Q

what about feminist perspectives on this all?

A

The major concepts in tort law – duty, negligence, proximate cause and legal injury – are value laden inquiries that cannot be separated from considerations of social policy.
Gendered assumptions about women’s “differences” from and inferiority to men that have shaped the development of particular tortious doctrines e.g. recovery for psychiatric harm
Areas of retrenchment with particular implications for women, most notably in the House of Lords decision to limit the scope of recovery for wrongful conception.
The problem of ‘relational harms’: “Tort law is never happier than when immersed in a knotty little problem involving a collision between strangers, preferably with lots of broken limbs. However, when a family member comes along and witnesses the limb-strewn aftermath, tort becomes just a little uneasy, as broken limbs are superseded by broken hearts and shattered relationships.”

[See: Joanne Conaghan, ‘Tort Law and Feminist Critique’ (2003) Current Legal Problems 175-209]

34
Q

fem approach 2?

A

Is there such a thing as a reasonable woman
And if so, what makes her different to a ‘reasonable man’?

Or, is this still a gendered concept that reinforces a dualistic attribution of reason & rationality to men, and emotion & intuition to women?

[Leslie Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort (1988) 38 Journal of Legal Education 3, 23]

35
Q

fem approach 3?- the reasonable woman

A

“The law can be a positive force in encouraging and improving our social relations, rather than reinforcing our divisions, disparities of power, and isolation… Tort law should begin with a premise of responsibility rather than rights, of interconnectedness rather than separation, and a priority of safety rather than profit or efficiency….
Through a feminist focus on caring, context, and interconnectedness, we can move beyond measuring appropriate behavior by algebraic formulas to assessing behavior by its promotion of human safety and welfare. This approach will clearly lead to liability for some behaviors for which there was none before. If we do not act responsibly with care and concern for others; then we will be deemed negligent. Just as we can now evaluate behavior as negligent if its utility fails to outweigh its risks of harm, we could evaluate behavior as negligent if its care or concern for another’s safety or health fails to outweigh its risks of harm.”

[Leslie Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort (1988) 38 Journal of Legal Education 3, 32]

36
Q

fem approach 4?

A

If instead we impose a duty of acting responsibly with the same self-conscious care for the safety of others that we would give our neighbors or people we know, we require the actor to consider the human consequences of her failure to rescue. Even though it is easier to understand the problem if we hone it down to “relevant facts,” which may include abstracting the parties into letter symbols (either A and B or P and D) or roles (driver and passenger), why is it that “relevant facts” do not include the web of relationships and connected people affected by a failure to act responsibly with care for that person’s safety?’ Why is it that our legal training forces us to exclude that information when we solve problems and make rules governing social behavior or for compensating some victims of accidents? Why should our autonomy or freedom not to rescue weigh more heavily in law than a stranger’s harms and the consequent harms to people with whom she is interconnected?

[Leslie Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort (1988) 38 Journal of Legal Education 3, 23]

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