P2 TORT LAW- DUTY OF CARE Flashcards
What does duty of care mean?
Legal obligation to take care of an defendant and avoiding causing foreseeable harm
What is the neighbour principle?
Persons who are so closely and directly affected by my act
Donoghue V Stevenson
Facts: bear contained a decomposed snail
Ratio: Manufacture own a duty of care to consumers
What is existing precedents
Cases that have previously occur before in court
What are examples of existing precedent?
Employee to employees, doctor to patient, driver to other road users and pedestrians, householder to neighbour
3 steps of approaching duty of care?
Robinson V CCWY
1) Ask existing precedent assuming duty of care
2) No existing precedent, courts will see any cases with smilies facts can draw analogous duty
3) no existing precedent will be “novel” (new) situation, new structure test
Robinson V CCWY
The fairness test only applied to novel situations
3 steps
Nettleship V Weston
Driver to other participants own a duty to passengers
Walker V Northumberland Country
Employee to employees own a duty
Mullins V Richard
Children owe each other a duty
Whitehouse V Jordan
Doctor to patient own a duty
Condon V Basi
Sportsman to other participants own a duty
Caparo V dickman
Only used if a novel situation
In order for duty of care all 3 are required:
1) harm must be reasonable foreseeable
2) parties must be in a relationship of proximity
3) must be fair, just and reasonable
Ashton V turner
Criminals do not owe a duty of care.
Hill V chief constable of West Yorkshire
Not fair just or reasonable to hold the police responsible for catching the Yorkshire ripple
Breach of duty-
What is breach of duty?
Done something to break the negligence
Blythe V Birmingham waterworks
Negligence is the omission to do something which a reasonable man would do or not
Nettleship V Weston
Lack of experience/skill can be disregarded
Bolom V Friem HMC
hospital did not fall below of standard. Court held that standard of professional is judge by standard of profession
What are the 5 factors where the court decided whether a defendant has fallen below standard of a reasonable person?
Foresight of harm
Likelihood of harm
I importance of social utility
Servility of harm
Burden of eliminating risk
F-
Roe V minister of health
Did not breach. Was not reasonable foreseeable. LJ said we must look at 1947 incident and with 1954 speculates
L- Bolton V Stone
Facts: cricket ball over fence of rare occurrence
Ratio: Risk was small
L- Miller V jackson
Facts: cricket ball over fence frequent
Ratio: risk was greater
I- Watt V Hertfordshire county council
Facts: jack on fire
Ratio: The saving a life outweighed the need to take precautions
Tomlinson V Congleton Borough council
Facts: Council put warning signs to not go in lake but still went
Ratio: social utility of public using lake outweighed the risk
Day V high performance sports
Facts: women falls from indoor climbing wall because she didn’t buckle herself properly
Held: there was no breach
Ratio: If the claimant erred (made a mistake) the error is the one of judgement not negligence
Having established duty of care and breach of duty what do we now have to prove?
Loss and damaged was suffered as a result of negligent act. And must prove was it foreseeable (outcome predicted) or remote (not predictable)
What are the 2 types of loss or damage caused?
Causation- did the defendant action cause the outcome
Remote- Not reasonably foreseeable
Cau- Barnett V Chelsea + Kengiston
But for Test- even with proper care the claimant would of still died of arsenic poisoning
McWilliams V aarol
Facts- husband never was asked to wear a buckle. But everytime he was asked he would neglect
Held: D not liable
Ratio: But for D’s reach duty of his care. C’s husband would of still died due to significant evidence of him neglecting to not wear it
Wilsher V Essex AHA
Facts: baby given too much oxygen but he was also premature. Either factor made him blind
Held: Ds negligence was not the cause
Facts: it could not be determined by what was the primary cause of the baby’s blindness
Rem- wagon Mound
Facts: defendant boat leaked and catches fire.
Held: not liable for fire
Ratio: was reasonably foreseeable for harbour but the fire was not reasonable foreseeable therefore too remote
Types of injuries need to be foreseeable but the precise(accuracy and extent (truth) does not need to be forseeable
Hughes V Lord Advocate
Facts: c fell down unattended manhole
Held: liable for full extent
Ratio: Harm is foreseeable but how it occurs is not
Bradford V Robinson
Facts: van driver suffered from frostbite
Held: still liable
Ratio: D still liable if the harm is reasonably foreseeable but extent is not
Page V smith
Ratio: some types of injuries must be foreseeable
Thin skull rule- Take C how you find them
Smith V leach Brian
CorrV IBC vehicles
S- Paris V Stepney
Although it was not a standard practice to provide goggles. Council owned him a higher duty of care as there is a higher risk of harm to C
B- Latimer V AEC
Facts: factory flooded but had signs to notify employee.
Held: did not breach
Ratio: Defendant had not be negligent and had taken all reasonable precautions
How to answer a Tort negligence 30M?
1) Duty of care- Robinson V CCWY
Case,similar facts, novel
2) Breach of duty- What they did what a reasonable man would not do
3) Risk Factors - FLISB
4) Causation did d act cause outcome
5)Remoteness -RF
6) Pay of damages
What is the purpose of damage
To put claimant back in position before negligence
What are the 2 types of damages?
Special damages = precise money for loss
General damages= estimate loss of compensation
What is mitigation loss?
Taking reasonable steps to avoid future negligence (minimise any loss he suffers)
What is special damages payed for and what case was used?
Medical expenses and paying for amount of days that they were working for. Must be reasonable
Cunningham V harrison = rejected unreasonable because he wanted housekeeper and nurse
General damage contains pecuniary and non pecuniary loss what are these?
Pecuniary= future loss for damaged/medical
Non pecuniary= Sue for pain/injury and amenity (can’t do a hobby u used to do)
What case was used in non pecuniary damage?
Hicks V South Yorkshire police- rejected as child suffered pain briefly
Amenity = West V Shepard -serious head injury
