Negligence- introduction Flashcards
What does Jenny Steele say on the ‘ocean of liability’
That the same doctrines appear time and time again. So do the same policy arguments too.
-But judges have discretion- they make come to different outcomes in every case
outcome in Cunningham v Reading Football club
- D held liable when football hooligans pelted police officers with concrete from the crumbling stadium
What did the officers argue in Cunningham v Reading Football club
- Officers argued that the club carelessly allowed the stadium to fall into pieces, and set the scene for this third party conduct- both harmful and wrongful
What analogy comes from Urbanski v Patel: (Canada case)
The Rescuer Analogy
Outcome in Urbanski v Patel: (Canada case)
2
- D held liable to C’s father (who had donated one of his own kidneys to save her life)
- That he became a rescuer throughout the surgeon’s carelessness- so he should be liable
outcome in Prendergast v Sam and Dee
2
- D held liable: harm to C was reasonably foreseeable
- Court said: a doctor is under a duty to write legibly
What type of case is Perry v Harris
A bouncy castle castle- novel case
Outcome in Perry v Harris
Steel J held D liable. D (parent) was under a duty of ‘uninterrupted supervision’
What problem did the CoA find in Perry v Harris (critique of Steel J)
That Steel J ‘applied too high a standard’ therefore, liability should not be ascribed
-judges exercise considerable discretion
Case for taking incremental steps
Watson v British Boxing Board of Control
Watson v British Boxing Board of Control
Lord Phillips MR: (on incremental steps)
‘We need to take small incremental steps to develop the law, however, in this case we cannot do that.’
Watson v British Boxing Board of Control
Lord Phillips:
identified the BBBC as being under a duty to be ‘proactive’.
Watson v British Boxing Board of Control
Outcome
-Update medical procedures as medicine advances. - BBBC held labile, practices should move on with science.
6 categories of negligence law
- Duty of care
- Breach of duty
- Causation
- Damage
- Remoteness- extent of liability
- Defences
Main case for duty of care
Donoghue v Stevenson- Lord Atkin (neighbour principle)
What is the neighbour principle in Donoghue v Stevenson
- Take reasonable care where harm is reasonably foreseeable
- D may be held liable where C is ‘closely and directly’ affected by his or conduct- proximate relationship (proximity)
which case did Lord Bridge state 3 requirements
Caparo Industries plc v Dickman
What are Lord Bridge’s 3 requirements in Caparo Industries
- Reasonably foreseeable harm (agrees with Lord Akin that harm should be RF)
- Proximity (agrees with Lord Atkin)
- Justice, fairness, and reasonableness
what new principle did Lord Bridge add to Lord Atkin’s neighbour principle in Donoghue
- Justice, fairness, and reasonableness
A policy consideration
Why was the just, fair and reasonable approach critiqued in Caparo industries
if we extend the law to a new set of circumstances, this will encourage a flood of cases, leading to the courts being overwhelmed. (Policy consideration that put a card in the hand of the D)
Lord Reed’s approach came from what case?
Robinson v Chief Constable of West Yorkshire
Robinson v Chief Constable of West Yorkshire
What was decided (compared to other cases)
- That precedent should be departed from if necessary [29]
- These cases are called novel cases- where courts will have to consider reasonable foreseeability
Robinson v Chief Constable of West Yorkshire
Why did Lord Reed argue that we don’t need to go through established principles
Because there are a lot of existing laws that establish clear principles- e.g. a doctor owes a patient a duty of care- so we don’t need to go through the Caparo test in court [30]
Robinson v Chief Constable of West Yorkshire
What is a novel case? (Lord Reed)
-what do judges have to consider?
‘Where the established principles do not provide an answer, that the courts need to go beyond those [‘established’] principles in order to decide whether a duty of care should be recognised’ [27]
(The rule of law an important consideration)
-In novel cases judges have to consider whether they should develop the law incrementally
case for reasonable person standard
Glasgow Corporation v Muir, Per Lord Thankerton
what is the reasonable person standard (3)
- An objective, external test
- The RP standard is insensitive to D’s personal equation or idiosyncrasies
- s this objective test fair? What if D lacks the mental capacity of a RP? The law might be seen to be very scrict here
what 3 things must the RP take into account
- cost of taking care
- gravity (or seriousness) of harm
- probability of harm
2 cases for cost of taking care
- Latimer v AEC Ltd
- Watt v Hertfordshire County Council
case for gravity of harm
Paris v Stepney Borough Council
2 cases for probability of harm
- Read v Lyons
- Bolton v Stone
Beyond these 3 factors that the RP must take into account, what further factor is considered
-The D’s purpose (Watt v Hertfordshire CC
Case for: relevance of context
-Qualcast (Wolverhampton) Ltd v Haynes (House of Lords).
-
Obiter from Denning Lj in Watt v Hertfordshire CC
commercial enterprise
-if the situation occurred in a commercial enterprise, without an emergency, D would have been held liable
(relevance of context is important)
Case for D’s purpose
Humphrey v Aegis Defence Services Ltd
Humphrey v Aegis Defence Services Ltd.
First decision: per Bidder J
D had not breached the duty owed to C.
- It was not reasonably practicable for D to dispense with the participation of the interpreters in the training exercises.- They had to be involved
To justify his decision what case did Bidder J find support for
Daborn v Bath Tramways Motor Co Ltd
Decision in Daborn per Asquith LJ (2)
the purpose to be served … social utility
- The purpose to be served, if sufficiently important, justified the imposition of abnormal risk.
- The Court of Appeal places emphasis on social utility in the war-time context in which the case arose.
Final decision in Humphrey v Aegis Defence Services Ltd
Moore-Back LJ
- That Bidder came to the right decision- D had not breached the duty owed to C
- The decision was correct but in the circumstances it was not unreasonable
What 2 factors are considered in causation
factual and legal causation
Case for factual causation
Barnett v Chelsea and Kensington Hospital Management Committee
Case for Legal causation
Stapley v Gypsum Mines Ltd
test in factual causation
but-for test- focusing on the necessary conditions of a harmful outcome
test in legal causation
- the real, direct or effective cause
- focus shifts to the ascription (or attribution) of responsibility (e.g. to a wrongdoer)
3 things to remember for the legal causation
- Lookout for wrongdoers
- Ascribing responsibility
- Prove on balance of
probabilities: prove 51% that the person is liable
case for damage
Hotson v East Berkshire Area health Authority
what does the law look for when it comes to damage
-substantial harm
What was damage defined as in Hotson v East Berkshire
loss of the chance of making a full recovery; by contrast, the House of Lords treated the ‘damage’ as ‘long-term disability’ (per Lord Ackner).
What rule comes from reasonableness
A scope rule
what does the remoteness doctrine establish (2)
- the extent of liability. It draws a line between recoverable and irrecoverable loss
- Balancing C’s security and D’s freedom of action- link to pursuit of distributive justice
for remoteness what must the damage be
The damage must be of a reasonably foreseeable type
Remoteness- reasonably foreseeable type case
Oversees Tankship (UK) Ltd v Morts Dock and Engineering Co, The Wagon Mound
case for egg shell principle
Smith v Leach Brain & Co Ltd
Remoteness and egg shell principle-
When may D recover damages
1) where the damage is of a reasonably foreseeable type and where
2) C’s particular susceptibility to harm means that his or her losses extend beyond the threshold of reasonable foreseeability
principle founded in Smith v Leach
that a tortfeasor takes his victim as he finds him’
3 factors we must establish in the egg shell skull principle
- C shows that harm is of a reasonably foreseeable type.
- However, the extent of the harm suffered by C goes beyond the threshold of reasonable foreseeability.
- If C has a particular susceptibility, he or she may invoke the eggshell skull principle to make recovery for the harm that lies beyond the threshold of reasonable foreseeability.
case for Principle and Policy
McLoughlin v O’Brian
principle and policy: Lord Scarman
judges should always base their decision on ‘principle’: (focusing our attention on the relationship between clamant and defendant).- focus on context and pursuit of corrective justice.
principle and policy: Lord Edmund-Davies
he found Lord Scarman’s view of the law ‘novel’ and ‘startling’ - and emphasised that judges regularly ground their decisions on ‘policy’
What did Ernest Winrey said about tort law
That tort law should be only about C and D, corrective justice and personal responsibility. If you strain from principle, you go away from tort.
principle and policy: what may Cs place emphasis on
accident-prevention or general deterrence
principle and policy: what may D’s place emphasis on
the fear that the ‘floodgates’ will open, or defensiveness (e.g., a medical practitioner), or the fear that a finding of liability will foster a negative blame culture.
principle and policy: what may judges place emphasis on
they may take a more neutral view of policy- he or she may see economic efficiency as relevant to the operations of negligence law.
wider considerations of the language of the law of negligence (2)
- tort law is open-textured- meaning that judges can extend it to cover the facts of novel cases
- the law of negligence is informed by the ideal of corrective justice
