Negligence PAPER 2 SEC B Flashcards
what is negligence
a type of tort(civil wrong) in English law, many types of tort but negligence is the most significant
in civil law what is taking someone to court called
suing
as a person bringing the case the court what will this person be called
claimant
who is the person being taken to court called
defendant
who has the burden of proof
claimant
what is the standard of proof that this person must meet
balance of probabilities
what does D have to do if they loose the case
pay damages
what is the purpose of a tort
return C to original position
what 3 things does a C have to prove
D owed C a duty of care
D breached duty of care
D caused C damages which was not too remote
which case was negligence created
Donoghue v Stevenson
what is the 3 part test called
Caparo test
what case changed the caparo test
Robinson v CCoWY
what did the supreme court decide in Robinson
if a duty has been proven to exist in a similar situation before it should only exist in the current case too. it is only in new situations that caparo test should be used to help decide if a duty should be owed
if the scenario talks about a situation or being new then what do you do
use the test from Caparo v Dickman
what case defines breach
Blyth v Birmingham Waterworks Co
what does Blyth V Birmingham Waterworks define breach as
D does not do something which is reasonable man would do or D does something which a reasonable man would not do
in what case are there factors affecting the reasonable and standard of care expected
Nettleship v Weston
was the standard of care expected from D in nettleship v weston
standard of care of an average competent driver
what factor was irrelevant in nettleship v weston
inexperience dos not lower standard of care
what are the 2 cases for proffesion/ expertise
Bolam v Frien Barnet HMC
Wells v Cooper
what is the case for age
Mullin v Richards
what are the 4 risk factors
size of risk
seriousness of potential harm
practicability of precautions
benefits of taking a risk
what is the definition of size of risk
how likely is the harm to happen
what are the 2 cases for size of risk
Bolton v Stone
Miller v Jackson
what is the legal principle for Bolton V Stone
the reasonable man will take less precautions against a small risk of harm
what is the legal principle for Miller v Jackson
is a risk if high the reasonable man takes more precaution
what is the definition of seriousness of potential harm
how bad the harm could be if it happens
what is the case for seriousness of potential harm
Paris v SBC
what is the legal principle for Paris v SBC
the reasonable man will take more care when the potential harm to C could be serious
what is the definition of practicability of precautions
how practical (easy, cheap, quick) was it to take precautions to reduce risk of harm
what are the 2 cases for practicability of precautions
Paris v Stepney BC
Latimer v AEC
what is the legal principle for Latimer v AEC
the reasonable man will take precautions which are proportionate to size of risk and seriousness of potential harm
what is the definition of potential benefits of taking risk
is the benefit going to outweigh the risk
used in life threatening cases and emergency services
what is the case for potential benefits of taking risk
Watt v HCC
what is the legal principle for Watt v HCC
the reasonable man will take a risk if the potential benefit to be gained outweighs the risk .
the claimant must prove that the defendants breach
caused damage to the claimant
that the damage caused was not too remote a result of the breach
what is the case for factual causation in negligence
Barnett v Chelsea and kensington hospital management comittee
When will intervening acts prevent D being liable
When action is unreasonable and unforseable
What are the cases for intervening acts
Reeves v MPC
Wilkin shaw v Fuller
why does the remoteness test exist and what is its purpose
to limit what someone is liable for
what is the test for the remoteness test
THE WAGON MOUND
what is the case for how the harm is caused can be unforeseeable
hughes v lord advocate
what is the case for the extent of the harm can be unforseeable
Bradford v Robinson rentals
what is the rule called when a D is more vulnerable due to a weakness or vulnerability
eggshell skull rule
what is the case for the eggshell skull rule
Smith v Leech brain and co ltd
what is contributory negligence
a partial defence where D is still liable but reduces the damages paid
how does contributory negligence work
judge says how much damages are paid
makes a percentage of the terms into damages
final amount of damages to be paid is based on the reduction decided
what does the Law Reform(contributory negligence) Act show about contributory negligence
damages awarded to the claimant can be reduced depending on the extent to which the claimant contributes to his own injury
what is the case for contributory negligence
Sayers v Harlow UDC
what is volenti non fit injuria
this is a full defence to all torts
what is meant by a full defence
D is not liable at all
what are the 3 elements of volenti where C accepts risk of injury
C knows precise risk involved in the situation
C was able to exercise free choice
C voluntarily accepted the risk
what does “C knows the precise risk involved mean”
this means C knows the nature of the actual risk and C must know nature of what actually happened
why is the volenti test being subjective matter and is important
this is because of what C actually believed not what C should have known
what is the case for C knowing the precise risk
Stremer v Lawson
what is the legal principle for stremer v lawson
C must know there is a general risk and he must know that there is a risk of what actually happened happening
When will C not be able to have exercised free choice
pressure
duress
obligation
what is the 1st case for exercising free choice
Smith v Baker
what is the legal principle for Smith v Baker
where C is forced into accepting the risk he has not exercised free choice
what is the 2nd case for exercising free choice
Ogwo v Taylor
what is the legal principle for Ogwo v Taylor
where C has a duty to act they are forced to act and cannot exercise free choice
what is the case for voluntarily accepting a risk
ICI v Shatwell
