Overall test-Tort – Intro To Tort And negligence leading to personal injury/damage to property

Question 1

1. What does tort mean? (1)

Answer 1

Tort is a civil wrong

Question 2

2. Damages are meant to be “compensatory”; what does this mean? (1)

Answer 2

The claimant is meant to be put back in the position they would have been in had the event not occurred.

Question 3

3. Set out the criteria for determining whether negligence cases will be seen by:
   * the Small Claims Court
   * the County Court
   * the High Court, Queen’s Bench Division (3)

Answer 3

1. Seen by a District Judge
   Claims for up to £1,000 for personal injury and up to £10,000 in other claims
2. Seen by a Circuit Judge
   Claims for less than £100,000
3. Seen by a High Court Judge
   Claims for over £100,000 or where there are complex legal issues

Question 4

4. What is the standard of proof in civil cases? (1)

Answer 4

“on the balance of probabilities” (that is, more than 50%)

Question 5

5. Generally speaking, where does the burden of proof lie in negligence cases? (1)

Answer 5

generally on the C

Question 6

6. What is the literal translation of res ipsa loquitor? (1)

Answer 6

the thing speaks for itself

Question 7

7. Briefly explain what happens to the burden of proof when a case is deemed res ipsa. (1)

Answer 7

the burden of proof switches to the D

Question 8

8. Name a case which demonstrates the principle of res ipsa. (1)

Answer 8

Scott v London and St Katherine Docks – bags of sugar fall onto the C’s head.

Question 9

9. Briefly explain what is meant by “mitigation of loss”. (1)

Answer 9

claimant should not make things more expensive than they have to be and expect to get compensation for it e.g. spending more than necessary on hire cars after a car accident.

Question 10

10. List the five tests to establish whether the D owes the C redress for negligence leading to personal injury or damage to property (5)

Answer 10

Duty of care
Breach of the duty
Factual causation
Damage is not too remote
Absence of a defence

Question 11

11. Briefly set out the facts of Donoghue v Stevenson (1932) (1)

Answer 11

Facts - Mrs Donoghue and her friend went to a cafe where her friend bought her a ginger beer which came in an opaque bottle. After drinking the ginger beer, the remains of a snail fell out of the bottle. Donoghue got ill.

Question 12

12. Explain the neighbour principle (1)

Answer 12

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
“Neighbours” are persons who are so closely and directly affected by my act that I ought to reasonably have them in contemplation

Question 13

13. As an alternative to the neighbour principle, the courts use three tests from Caparo v Dickman to establish whether the D owes the C a duty of care. State the first Caparo v Dickman test, name a case which demonstrates this test, and briefly set out the facts of this case. (3)

Answer 13

Foreseeability
Kent v Griffiths (2001).
The claimant made a claim against the ambulance service. An ambulance took 40 minutes to arrive to a 999 call, by which time the claimants asthmatic problem got worse. Was it reasonably foreseeable that the late arrival might worsen a 999 caller’s injuries?

Question 14

14. State the second Caparo v Dickman test, name a case which demonstrates this test.

Answer 14

Proximity-The D must have proximity to the C in time and space or, if not, then in relationship.
Bourhill v Young (1943).

McLoughlin v O’Brien (1983).

Question 15

15. State the third Caparo v Dickman test, briefly set out the true purpose of this test, name a case which demonstrates this test, and briefly set out the facts of this case. (5)

Answer 15

Fair, just and reasonable-would it be in the public interest to impose a duty of care in these circumstances?
Hill v Chief Constable of West Yorkshire (1988). The House of Lords refused to impose a duty of care on the police to the mother of the Yorkshire Ripper’s last victim. The police had already interviewed and released the killer before he killed again.

Question 16

16. What standard does a D need to reach to avoid being in breach of his duty of care to the C, and which case established this standard? (1)

Answer 16

that which would be expected of a “reasonable man” in the circumstances. Blyth (1856)

Question 17

17. Briefly set out the facts and principle of Bollom. (2)

Answer 17

Bolam (1957):
D with mental illness given electro-convulsive therapy
Not given relaxant drugs and bones broke
Some medical experts believed all patients should be given the drugs and some believed just at-risk patients
No breach as the hospital had followed procedure supported by a “substantial body of opinion” within the profession

Question 18

18. Briefly set out the facts and principle of Bolitho. (2)

Answer 18

Bolitho v City & Hackney Health Authority (1997).
a doctor summoned to deal with a 2 year old with breathing difficulties didn’t attend because her bleeper out of batteries
child died.
doctor claimed that following standard procedure she would not have taken actions which would have saved the child
courts said the medical profession was wrong on this matter and the D was liable.

Question 19

19. Briefly set out the facts and principle of Nettleship v Weston. (2)

Answer 19

Nettleship v Weston (1971). C was teaching a learner driver, who hit a lamppost injuring the instructor. Standard expected to avoid breach was that of a reasonably competent driver.

Question 20

20. Briefly set out the facts and principle of Mullins v Richards. (2)

Answer 20

Mullin v Richards (1998). Teresa Mullin and Heidi Richards were schools friends, mock sword fighting with rulers when a ruler broke and a shard flew into Teresa’s right eye, causing loss of sight. The Court of Appeal decided that Heidi was only expected to meet the standard of a reasonable 15 year old; as she had reached this standard, she was not in breach of duty.

Question 21

21. Briefly set out the facts and principle of Paris v Stepney Borough Council. (2)

Answer 21

Paris v Stepney Borough Council (1951). C was a one-eyed garage fitter. When hammering, a chip of metal got in his good eye and he lost all his sight. His employer should have provided him with goggles because the fact that he was already blind in one eye meant he required a higher standard of care.

Question 22

22. Briefly set out the facts and principle of Bolton v Stone. (2)

Answer 22

Bolton v Stone (1951). During the cricket match, a batsman struck a ball over the 5m high protective fence around the ground and hit a woman. In the past 30 years the ball had only been hit out of the ground in that direction six times and it had never hit someone before. The court decided that the risk of injury was so small that the reasonable man would not take in into account, so the cricket club was not liable.

Question 23

23. Briefly set out the facts and principle of Lattimer v AEC. (2)

Answer 23

Latimer v AEC (1952). The D’s factory was flooded and the floor became slippery. The D put up warning signs, passed the message round the workforce, and used sand and sawdust to dry the floor as best they could. Nonetheless the claimant slipped and injured. The company was not liable as they had taken all practical precautions.

Question 24

24. Briefly set out the principle of Watt v Herts County Council. (2)

Answer 24

The court must “ balance the risk against the measures” where there are benefits to the risk.

Question 25

25. What is the test used to establish whether the D’s breach caused the damage complained of? (1)

Answer 25

the “but for” test

Question 26

26. Name the case which established this principle, and briefly set out its facts. (2)

Answer 26

Barnett v Chelsea and Kensington Hospital Management Committee (1969). A man went to a hospital complaining of stomach pains and vomiting. Doctor refused to examine him and sends him home untreated; he died of arsenic poisoning. As treatment would not have saved him, the doctor’s (in)action were not a cause of death.

Question 27

27. Using a case example, briefly summarise one of the occasions where the requirement for factual causation has been suspended for policy reasons (2)

Answer 27

Fairchild v Glenhaven Funeral Services (2002). C got cancer after exposure to asbestos, but he had been exposed by five previous employers and it was impossible to establish which occasion has resulted in the cancer.

Question 28

28. What is the test for establishing whether the damage complained off is too remote for the D to be required to pay damages for it? (1)

Answer 28

The test is that the defendant is liable for damage only if it is a foreseeable consequence of the breach of duty.

Question 29

29. State the case which established this principle, and briefly set out the facts of this case. (2)

Answer 29

The Wagon Mound (1961). D spilt oil into the water when refuelling a ship. Oil spread to the C’s wharf. C was doing some work involving welding. Sparks from the welding ignited the oil which caused a fire, damaging the wharf. The court said that, although pollution damage to the claimant’s wharf was foreseeable, fire damage was not.

Question 30

30. Briefly set out the principles of these three cases:
    a. Bradford v Robinson Rentals (1)
    b. Hughes v Lord Advocate (1)
    c. Smith v Leech Brain (1)

Answer 30

1 where the losses that occurred are of the same type as that which was foreseeable, but are more extreme

#2 where the loss is foreseeable but the precise manner in which it occurred was not
#3 The thin-skull rule-take your victim as you find them

Question 31

31. Name a case which demonstrates the total defence of consent and briefly summarise its facts (2)

Answer 31

Morris v Murray (1990). After both had a good deal to drink, they agreed to go for a flight in D’s private aeroplane. The aeroplane crashed. C could not receive damages as he had consented to the risk when he agreed to fly drunk.

Question 32

32. Which Act of Parliament introduced the partial defence of contributory negligence? (1)

Answer 32

the Law Reform (Contributory Negligence) Act 1945

Question 33

33. Name a case which demonstrates contributory negligence.

Answer 33

Brannon v Airtours (1999).

Question 34

34. Briefly explain how damages are calculated in instances where the defence of contributory negligence applies. (1)

Answer 34

Where there is contributory negligence, the amount of damages which the C receives will be reduced in proportion to their blameworthiness.

Question 35

What does civil law deal with?

Answer 35

Private disputes between individuals or businesses

Question 36

What does civil law lead to?

Answer 36

Compensation to put the parties back where they were before the wrong occurred.

Question 37

How are cases referred ?

Answer 37

[C’s name] v[D’s name]

Question 38

Who brings the case?

Answer 38

Usually these cases occur when the C sues the D

Question 39

Summarise facts of Bourhill v Young (1943).

Answer 39

The C was getting of a tram when she heard a collision. She went round the corner to see what had happened and saw the crash aftermath. The shock caused her to miscarry. D did not to owe a duty of care as there was no proximity in space when the accident happened and the C had voluntarily gone to look at the accident.

Question 40

Summarise facts of McLoughlin v O’Brien (1983).

Answer 40

Mrs McLoughlin was told about a serious accident involving family members. She rushed to hospital to discover that one of her children had died while her husband and another child were seriously ill. She suffered shock, and the court decided that the person who caused the accident did owe her a duty of care based on the proximity of the relationship between the mother and those injured.

Question 41

Facts of Brannon v Airtours.

Answer 41

C, a holiday maker, was at a party organised by D. C was injured when he climbed onto a table in order to get out, and collided with a low fan hanging from the ceiling. D was held to be negligent in arranging the room in such a way as to make it difficult to get out without climbing over the furniture but C was found to be partly to blame for actually standing on a table despite warnings not to.