NEGLIGENCE-intro Flashcards
what is negligence?
area of law that allows someone who has suffered as result of someones carelessness to be compensated by the wrongdoer for any injury caused
what is the most important case of negligence?
donoghue v stevenson- because of all the principles within it. Gave the 3 important ingrediants.
what are the 3 important ingrediants?
- does d owe c a duty of care
- was the defendant in breach of duty
- c suffer damage as result of breach
what type can damage be?
personal injury/property damge/psychiatric harm
how do you establish a duty of care in negligence?
we use law laid down by lord atkin
in which case was the law laid down by lord atkin in?
donoghue v stevenson
what did this famous give us?
“neighbour principle”
what did the neighbour principle establish?
legal rules relating to standards of acceptable conduct between individuals
what are obvious duties and what happens if duties arent obvious?
some duties are obvious such as those btw manufacturer and consumer (in donoghue ) however some are not . The case caparo industires v dickamn - gave 3 part test to establish duties
what are the 3 things contained in the 3 part test?
- forseeability
- proximity
- just & reasonable
what does it mean by forseeability?
could reasonable man forsee what d caused
cases for foreseeability?
brannan v airtours-yes fardon v harcourt rivington
what is foreseeability in other words?
what might happen
what does it mean by proximity?
could the reasonable man know who it might happen to?
what does it mean by who it might happen to?
reasonable class, likely recepient/ identify group/class
cases for proximity?
hill v chief const of w.yorks= no
swiney v chief const of northumbria police
what does it mean by policy?
(on the grounds of policy) judge can still deny claim if not just & reasonable to allow it.
cases for policy?
John Munro limited v London Fire and Civil Defence Authority
Kent v Griffths
what do you do after duty is established?
breach of duty
how do you establish how a defendant has breached their duty towards the claimant?
apply the reasonable man test
what is the reasonable man test?
“to see whether d had fallen below the expected standards of the reasonable man” at the time harm was caused
what is the cases for breach?
blyth v birmingham waterworks
wells v cooper
what if the defendant was a child?
the reasonable man would be a reasonable person of childs age
what is also taken into account with the r.m.t?
special skill
what do you do with special skill?
compared to the average person exercising at the same level of ability
what are the factors called to determine standard of care required of d?
risk factors
what are the 5 risk factors and there cases?
time of breach- roe v minister of health
likelihood of harm- bolton v stone
risk of serious injury- paris v stepney borough council
value of d’s activity- watts v herts c.c.
cost of avoiding harm- latimer v aec ltd
can the claim fail if there is no breach?
yes
what do you do after breach?
damage
what does it mean by damage?
defendant must cause damage c suffers could be personal injury, psyhiological, property
what must there be for the defendant to be liable?
factual and legal causation like in criminal law
what is factual causation in breach?
but-for test “would the claimant have suffered loss/damage but for the defendants negligence”
case for factual causation?
barnett v chelsea hospital kent v griffths = compare case
what is legal causation?
too see if the chain is broken- look if claimant to blame or not
it what ways can the chain be broken?
1.act of claimant
2. third party
3eggshell skulls
4.act of nature-classed as 3rd party
5.remoteness
cases for act of claimant?
- mcckew v holland - equal to r v williams and davies and substantial cause- break chain, ( c was substantial cause) r v pagett
- sayers v harlow- equal to r v roberts A.B.H
what does the sayers v harlow case also show?
contributory negligence
what is contributory negligence?
may not be substantial cause but contributed leading to a deduction in reward
cases for act of 3rd party ?
- other than c/d
- Topp v London Country Bus ltd - d not substantial cause
- MCghee v NCB- d was substantial cause- claim down due to contribution
cases for act of eggshell skull principle?
Smith v leech brain- pay more to person who suffers more “take v as you find them”
Robinson v Post office
cases for act of nature?
lichfield v cologie steamship
cases for remoteness?
The Wagon Mound
what is meant by The Wagon Mound?
if too remote and far from act may break chain and defendant not liable. must be foreseeable result of breach of duty. (policy decision)
related elements of negligence? (2)
- burden of proof
2. remedies in Tort
what is burden of proof?
for a claim to succeed the c must prove that d was negligent (proof will be on a balance of probabilities)
what is the exception to burden proof?
civil evidence act 1968 s.11
what does exception to burden proof mean?
c produce evidence of criminal offence arising out of sit that led to negligence. so if criminal convic can be citied in civil case which would shift burdeen of proof to d to show not negligent.
what are the two types of remedies in tort?
damages & injunctions
what are the 3 types of damages?
compensatory damages, special damages, general damages
what are compensatory damages?
provision of financial compensation. put claimaint in position it was in before tort.
what are special damages?
can be precisely calculated e.g. loss of earnings/property damage. also known as pecuniary loss as amount of loss is accurately quantifiable.
what are general damages?
cannot be accurately defined e.g personal injury awarded for pain and suffering. also known as non-pecuniary loss e.g loss of amenity awarded based on tarriff.
what are injunctions?
normally used for nuisance, granting of injunction not automatic but at the discretion of court and normally granted where damages are inadequate e.g nuisane.
what are the types of injunctions?
prohibitory injunction
mandatory injunction
interim injunction
what is a prohibitory injunction?
stop someone from continuing act that is the cause of suit
what is a mandatory injunction?
order to make d do something e.g cut trees that are block c light
what is a interim injunction?
can be issued before that actual trial to stop the tort continuing during the trial. sometimes used in cases of nuisance.
