negligence- tort law

Question 1

negligence

Answer 1

. a common tort law that has been created by judicial decisions
- it arises when a claimant suffers injury, loss or damage to property as a result of the acts or omissions of the defendant

Question 2

negligent/omission

Answer 2

. negligent- an action
. omission- a failure to act>injures someone- eg. don’t pick up wire

Question 3

elements required for a successful claim in negligence

Answer 3

. they owe a duty of care to the claimant- relationship between parties
. duty of care has been breached- not doing what supposed to be doing
. causation and remoteness- the breach causes damage which is reasonably foreseeable

Question 4

claimant’s aim

Answer 4

. aim of taking a negligence case to court would be for the C to be awarded damages to make up for the injury or loss that has been suffered

Question 5

DOC- Donoghue v Stevenson 1932

Answer 5

. Mrs Donoghue drank from bottle of ginger beer- had decomposed snail in it
>suffered physical injury+ mental anguish
. could not sue under contract law because she had not bought the drink
>sued in negligence- claimed they owed a DOC+ were at fault in the manufacturing process
. Lord Atkin’s statement- “Your must take reasonable care to avoid acts or omissions”

Question 6

DOC- Dorset Yacht Co v Home Office 1970

Answer 6

. Lord Reid said “when a new point emerges one should ask not whether it is covered by authority but whether recognised principles apply to it.”

Question 7

DOC- Anns v Merton London Borough Council 1978

Answer 7

. Lord Wilberforce stated a DOC would be owed if there was sufficient proximity between the parties+ provided there were no public policy reasons not to apply a DOC

Question 8

DOC- Caparo v Dickman 1990

Answer 8

. Caparo bought shares of company+ relied on results of profit report; report had misinterpreted the profits of the firm> loss for Caparo
. HoL decided no DOC was owed+ they set down 3 part test
- damage or reasonably foreseeable
- proximity of relationship
- fair, just+ reasonable to impose duty

Question 9

DOC- Kent v Griffiths 2000

Answer 9

. damage or reasonably foreseeable
. C had asthma attack- ambulance failed to turn up
. court decided it was ‘reasonably foreseeable’ that C would suffer further illness if ambulance did not arrive properly

Question 10

DOC- Bourhill v Young 1943

Answer 10

. proximity of relationship (space, time, relationship)
. pregnant woman heard accident> went to look at it> suffered shock from seeing aftermath> suffered miscarriage
. D was found not to owe DOC to C
- she was in a safe place+ had not seen accident but voluntarily witnessed aftermath> no proximity in space- away from accident even though she was nearby at the time

Question 11

DOC- Hill v Chief Constable of West Yorkshire 1990

Answer 11

. fair, just+ reasonable to impose duty
. mother of last victim of Yorkshire ripper wished to sue police-failed to arrest Yorkshire ripper before he killed her daughter, despite having enough evidence
. court found DOC partly on basis of proximity but also on matters of public policy- police need to be able to work as efficiently as possible/ can’t do this if they owe a DOC to all potential victims of crime

Question 12

DOC- Robinson v Chief Constable of West Yorkshire 2018

Answer 12

. elderly lady walking along street> injured when police officers tried to arrest suspected drug dealer> struggle> suspect+ police fell on ground+ collided with C> injured
. ruled that police did owe DOC but relying on Hill, held that there was general immunity from claims in negligence
. c/a agreed, holding that in most cases against police, it would not be fair, just + reasonable to impose a DOC

Question 13

Blyth v Birmingham Waterworks 1856

Answer 13

. provided first definition of negligence
-‘failing to act in a way that a reasonable man would have acted in such circumstances’
. Ds installed a fire plug near C’s house
>leaked> water damage
. D found negligent- D appealed but appeal was rejected

Question 14

DOC- Darnley v Croydon NHS Trust 2018

Answer 14

. patient left A&E- told wrongly by receptionist there was wait of several hours> suffered permanent brain injury
. decided case fell within established category of DOC- reasonable care not to provide misleading information

Question 15

DOC- Sumner v Colborne and others 2018

Answer 15

. overgrown vegetation off highway obscured motorcyclists view>accident
. novel situation- no precedent
. decided not fair, just + reasonable for duty to be imposed onto highway authority- undue burdens placed on landowners=unjust

Question 16

BOD- Nettleship v Weston 1971
-learners

Answer 16

. learner driver crashed into lamp post
>injured her instructor
. Nettleship was her neighbour and not a professional driving instructor
. learner expected to meet same standard as a reasonable qualified, competent driver
- insurance purposes + would be unjust to deny compensation to a C, on basis that D is a learner

Question 17

BOD- Mullin v Richards 1998
-children + young people

Answer 17

. two 15 year old girls had fight with plastic rulers
. ruler snapped> went in Mullin’s eye
>lost sight in the eye
. held D only needed to reach standard of reasonable 15 year old- they felt she did> not in breach

Question 18

BOD- Orchard v Lee 2009
-children + young people

Answer 18

. C was a dinner lady, supervising school playground
. 13 year old ran backwards into her whilst playing tag> suffered injuries
. c/a held boy had not breached his DOC> not liable

Question 19

BOD- Bolam v Friern 1957
- professionals

Answer 19

. D was the body who employed a doctor who had not given a mentally-ill patient muscle-relaxant drugs, or restrained them, before giving the electro-convulsive therapy
>C suffered injuries
. decided the doctor was not in breach of duty

Question 20

BOD- Bolitho v City and Hackney Health Authority1997

Answer 20

. HoL suggested that a court should decide what standard of care applies in each case, rather than considering professional opinion as a whole

Question 21

BOD- Montgomery v Lanarkshire Board 2015

Answer 21

. C gave birth to a son with cerebral palsy due to complications during delivery
. doctor’s failure to disclose the risks + obtain her informed consent
. court was invited to depart from precedent + reconsider duty of doctor towards patient in relation to advice about treatment
. decided doctor was under a duty to disclose the risk of a major obstetric emergency, which risks mother’s health
. case changed Bolam test to a greater test in medical negligence by introducing the general duty to attempt the disclosure of risk

Question 22

BOD- (risk factors)- has the C taken any special characteristics which should be taken into account?- Paris v Stephney Borough Council

Answer 22

. C was known to be blind in 1 eye
. employers gave him work- involved small risk of injury to his eyes + wasn’t given protective goggles
. small piece of metal damaged his working eye> left completely blind
. held he was owed a higher standard of care- he only had the sight of one eye> there was an increased risk, which justified a higher standard

Question 23

BOD- (risk factors)- what is the size of the risk?- Bolton v Stone 1951

Answer 23

. cricket ball hit C as she was walking along street
. 17 foot high fence around ground
>balls only hit out of ground 6 times over last 30 years
. held the risk of someone being hit was so small>reasonable man would not consider it to be a risk>had reached appropriate standard

Question 24

BOD- (risk factors)- what is the size of the risk?- Haley v London Electricity Board 1965

Answer 24

. C was blind + fell in an open trench
- had been dug by the electricity board
. trench had not been cordoned off
. held the reasonable man would take precautions to guard against that situation

Question 25

BOD- (risk factors)- have all appropriate precautions been taken?
- Latimer v AEC 1953

Answer 25

. D’s factory flooded after rainstorm
>slippery floor
. D put up warning signs, passed message round to workforce + used all its sand + sawdust to cover floor
. C still slipped>injured
. held that D had taken all reasonable precautions> had not broken DOC owed to C

Question 26

BOD- (risk factors)- were the risks known about at the time of the accident?- Roe v Minister of Health 1954

Answer 26

. C was injected with an anaesthetic to minimise infection
. C suffered paralysis from waist down
- anaesthetic was contaminated with the antiseptic
. at time, risk of that happening was not appreciated by the competent anaesthetist
. duty owed by hospital to patient was not broken- cannot protect against risks they are unaware of

Question 27

BOD- (risk factors)- is there a public benefit to taking the risk?- Watt v Hetfordshire County Council 1954

Answer 27

. firefighters injured by lifting gear when traveling in a vehicle not fitted for carrying the gear
. the vehicle that should have been used was deployed somewhere else
. held the firefighters were prepared to take rusk of using wrong vehicle in interests of saving lives> council hadn’t broken its DOC to firefighters

Question 28

BOD- (risk factors)- is there a public benefit to taking the risk?- Day v High Performance Sports 2003

Answer 28

. C was an experienced climber but fell from a climbing wall>suffered serious injuries>had to rescued by duty manager- the way the manager rescued her caused her to fall
. decided that there was no breach of the DOC because of the emergency situation

Question 29

damage- factual causation- Barnett v Chelsea and Kensington Hospital 1969

Answer 29

. 3 night watchmen went to A&E complaining of sickness after drinking tea> nurse called duty doctor- didn’t examine them + recommended they go home to see their own doctors> a man died hours later + were all poisoned
. held hospital owed DOC + were in breach but were not liable- they had not caused death of man (poison did)

Question 30

damage- factual causation- Mckew v Hollands 1969

Answer 30

. an act of a claimant broke chain
. C suffered leg injury at work due to employers BOD- then tried to climb down a steep concrete staircase that had no handrail> his leg gave way + he jumped 10 steps to bottom> broke leg
>left with permanent disability
. employer was negligent + liable for initial injury but new action by C was a nous acts interveniens that broke the chain of causation- taken unreasonable risk> D could not be liable

Question 31

damage- factual causation- Carslogie Steamship v Royal Norwegian Government 1952

Answer 31

. an act of nature
. ship damaged in collision, then in storm
. Ds were only liable for loss of profit resulting from collision, not for further damage sustained by natural events at sea

Question 32

damage- factual causation- Knightly v John 1982

Answer 32

. act of third party
. Johns caused crash, officer then crashed closing tunnel (order from D)
. D was negligent + his order was a nous acts interveniens that would negate car driver’s liability for police officer’s injuries- third party order broke chain of causation

Question 33

damage- legal causation- Wagon Mound 1961

Answer 33

. fuel oil spilled>fire
. D’s did not know + could not reasonably be expected to know that the oil would ignite on the water
. held the damage by fire was too remote> D’s not liable for damage
>test for remoteness from this case
-injury/damage must be reasonably foreseeable for D to be liable

Question 34

damage- legal causation- Bradford v Robinson Rentals 1967

Answer 34

. type of injury to be foreseeable
. employer told C to travel in cold> frostbite
. Ds were liable- although unusual injury, it was foreseeable that C would suffer some cold related injury

Question 35

damage- legal causation- Doughty v Turner Asbestos 1964

Answer 35

. asbestos lid knocked into molten metal> explosion> burnt C
. decided scientific knowledge at the time could not have predicted the explosion> not foreseeable> resulting injury was too remote

Question 36

damage- legal causation- Smith v Leech Brain 1962

Answer 36

. take your victim as you find them
. C suffered splash minor metal> burn face> triggered pre-existing cancerous condition> developed cancer
. some minor injury was foreseeable + his extreme reaction was result of a condition
. principle applied> claim succeeded

Question 37

defences- contributory negligence

Answer 37

. partial defence
. C is also partly responsible
. Law Reform Act 1945

Question 38

defences- contributory negligence- Sayers v Harlow Urban District Council 1958

Answer 38

. C trapped in public toilet
. decided she would get a 25% reduction in damages because of the way she tried to escape

Question 39

defences- contributory negligence- O’Connell v Jackson 1972

Answer 39

. motorcyclist didn’t wear helmet in accident
. damages reduced by 15%

Question 40

defences- contributory negligence- Froom v Butcher 1976

Answer 40

. not wearing seatbelts in accident
. damages reduced by 25%

Question 41

defences- contributory negligence- James v IMI Ltd 1985

Answer 41

. C removed guard on machine> lost a finger
. damages reduced by 100%- C admitted fault

Question 42

defences- consent

Answer 42

. full defence
. C voluntarily accepts risk of harm
. knowledge of precise risk involved
. exercise of free choice by the C
. voluntary acceptance of the risk